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HomeMy WebLinkAboutC2009-361 - 7/28/2009 - ApprovedAGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI TEXAS A &M UNIVERSITY— CORPUS CHRISTI ( "RECIPIENT ") (HOTEL OCCUPANCY TAX REVENUE RECIPIENT AGREEMENT) The State of Texas KNOW ALL BY THESE PRESENTS: County of Nueces This Hotel occupancy Tax Revenue Recipient Agreement ( "Agreement ") is made and entered into by and between the City of Corpus Christi, a Texas home -rule municipal corporation ( "City "), acting through its duly authorized City Manager or his designee ( "City Manager"), and Texas A &M University- Corpus Christi, a member of The Texas A &M University System, an agency of the State of Texas ( "Recipient "). Whereas, the City has allocated $15,000.00 in Hotel Occupancy Tax revenue ( "Grant funds ") to enable Recipient to perform those activities described in Exhibit "A" ( "Activities "), a copy of which is attached to this Agreement and incorporated by reference; Whereas, City desires to encourage and fund activities that promote the arts and in doing so serve to promote tourism and the convention and hotel industry within the City of Corpus Christi, in accordance with Section 351.101 of the Texas Tax Code; Whereas Recipient desires to provide those activities that promote the arts, as the sole or contributory producer of the activities described in Exhibit "A" ( "Activities "); Whereas, City has determined that promoting the Arts serves the purpose of promoting tourism and the convention and hotel industry within the City of Corpus Christi. Whereas, City has determined that there exists a genuine need for Recipient's Arts program in the City of Corpus Christi and wishes to encourage the production of Recipient's Arts Program through the funding of these Activities; Now, therefore, City and Recipient agree as follows: Purpose. The City desires to expend funds from the City's Hotel Occupancy Tax Revenue to fund activities produced by non- profit, community- oriented organizations, specifically those programs that promote the arts and in doing so also promote tourism and the convention and hotel industry within the City of Corpus Christi. H. Term. This agreement commences on the 1st day of August, 2009 and terminates on the 31 day of July, 2010. 2009 -361 Ord. 028252 07/28/09 \Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC TAMU -CC 1R D III. City's Duties. City agrees to pay Recipient $15,000.00 out of revenue from the City of Corpus Christi's Hotel Occupancy Tax fund for use in accordance with Section IV, below. In no event will City be liable for an amount in excess of this grant amount. IV. Recipient's Duties. In consideration for receipt of Grant funds, Recipient agrees to perform those activities described in the attached and incorporated Exhibit "A ". This performance shall include those activities that are eligible for funding under Section 351.101(a)(4) of the Texas Tax Code. V. Eligible Activities. Use of grant funds by Recipient is limited to those activities that, without exception, meet all three of the following requirements: (A) the activities are described in the attached and incorporated Exhibit "A ". (B) the activities are in the categories of art that are eligible for funding as described in Section 351.101(a)(3) and (4) of the Texas Tax Code, copy attached as "Exhibit B ". (C) the activities promote the Arts, tourism and the convention and hotel industry within the City of Corpus Christi as authorized in Section 35.101(a)(3) and (4) of the Texas Tax Code. VI. Promotion of Tourism and the Convention and Hotel Industry. Recipient must actively promote the Arts, as a goal of Recipient's Activities. This may be accomplished by working to increase the number of out -of -town program attendees through target promotion of the Art activities described in the attached and incorporated Exhibit "A VII. Completion Report. Recipient must submit to the City's Director of Management and Budget ( "Director ") a completion report ( "Report"), no later than thirty (30) days following the termination of this Agreement. The Director, or his designee, shall review this Report to verify whether the Grant funding provided to Recipient was spent in accordance with the requirements in this Agreement. The Report must include the following criteria: (A) Written assurance to City that all Activities funded by the City served to promote the arts in the community. This shall be evidenced by providing the City with a written description of Recipient's marketing or advertising strategy. (B) For all Activities funded by the City, Recipient must submit to the City a written estimate of the number of Recipient's Arts program attendees that reside outside the territorial limits of the City of Corpus Christi. This may be accomplished by the use of a visitor log, by tallying the number of out -of- town billings or by listing the out -of -town mailing addresses gathered through the ticket sales process. C: \Documents and Settings\Imesser\Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC (C) An estimate of the total Arts Program attendance (D) A statement of Recipient's Arts Program revenues and expenditures. Vlll. Records Retention. Recipient must at all times during the term of this Agreement, and for three years following the expiration of the Agreement, keep true, accurate, complete, and auditable records. Recipient agrees to: (A) at least annually make periodic reports to the City of its expenditures from the Grant funds given under this agreement; and (B) make records of these expenditures available for review to the City. IX. Disbursement of Funds. Recipient understands and agrees that payment by the City of Grant funds under this Agreement is contingent upon Recipient's full compliance with the requirements of this Agreement. X. Unexpended funds. Upon termination of this Agreement, Recipient must promptly refund to City any unexpended Grant funds. XI. Advertising. Recipient must acknowledge the City of Corpus Christi as a contributor on all advertisements and publications regarding Recipient's Arts Program. Recipient must provide Director with a copy of all Recipient- sponsored advertising and promotion materials regarding its Activities. XII. Modifications and Waivers. No provision of this Agreement may be altered, changed, modified, or waived unless approved by both parties in writing. XIII. Relationship between Parties. Nothing in this Agreement shall constitute a partnership, joint venture, or principal -agent relationship between the parties. XIV. Compliance with Laws. Both parties shall observe and obey all applicable laws, ordinances, regulations and rules of the Federal, State, Country and City governments. This Agreement is subject to applicable provisions of the City Charter and the City Code of Ordinances. XV. Non - discrimination. Recipient shall not discriminate, or permit discrimination against any person or group of persons, as to employment or in the provision of services, activities, and programs. Discrimination as it pertains to this section includes discrimination on the basis of race, religion, national origin, sex, disability, or age, or in any other manner that is prohibited by the laws of the United States or the State of Texas Violation of this provision may result in the immediate termination of this Agreement. XVI. Indemnity: To the extent permitted by the laws and constitution of the State of Texas, both Parties agree to defend, indemnify and hold harmless the other Party, C:\Documents and Settings\Imesser\Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC and their respective agents, officers and employees from and against any and all liability or damages incurred in connection with claims for damages of any nature resulting from bodily injury, death, personal injury or property damage arising from the negligent or willful acts or omissions of the indemnifying Party, its agents or employees. No party to this Agreement shall be liable for any negligent or wrongful act to the extent caused by any other party to this Agreement unless (and to the extent that) any such liability is imposed by a court of competent jurisdiction. XVII. Termination. (A) The City may terminate this Agreement for any of the following reasons: (1) The City may immediately terminate the Agreement due to any violation by Recipient of section XIV or XV of this agreement. (2) The City may terminate this Agreement upon 30 days written notice due to failure by the Recipient to substantially perform the Activities described in Exhibit "A ", unless Recipient and City agree on a modification to the activities specified in Exhibit "A" and execute a written modification in compliance with Section XII of this Agreement. (3) The City may terminate this Agreement upon 30 days written notice due to Recipient's use of Grant funds to pay for activities other than those qualifying as Eligible Activities under section V of this Agreement. (B) Recipient may terminate this Agreement without cause upon thirty (30) days written notice to City. If Recipient chooses to terminate the Agreement, Recipient must repay the unexpended Grant funds awarded. XVIII. Severability. If any term or provision of this Agreement or its application to a person or circumstance is determined to be illegal, unenforceable or invalid, the remainder of this Agreement will not be affected by that illegality, unenforceability, or invalidity. XIX. Force Majeure. With respect to any duties, obligations, -or covenants (but not including the Completion Report required by Section VII) to be performed, or consideration to be provided to either party during the term of this Agreement, the party so obligated shall, in no event, be liable for failure to perform when prevented from doing so by any cause beyond the reasonable control of that party including, without limitation: strike, lockout, breakdown, accident, order or regulation of any governmental authority, failure of supply, inability, by the exercise of reasonable diligence, to obtain supplies, parts or employees necessary to perform services, or because of war, natural disaster, or other emergency. C:\Documents and Settings\tmesser \Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC XX. Notices. All notices, demands, requests, or replies ( "communications ") provided for or permitted under this Agreement by either party must be in writing and must be delivered by one of the following methods: (1) personal delivery; (2) deposit with the United States Postal Service via certified or registered mail, return receipt requested, postage prepaid; (3) prepaid telegram; (4) deposit with an overnight express delivery service, for which service has been prepaid; or (5) fax transmittal. Notice deposited with the United States Postal Service in the manner described above will be deemed effective two (2) business days after deposit with the United States Postal Service. Notice by telegram or overnight express delivery service in the manner described above will be deemed effective one (1) business day after transmission to the telegraph company or overnight express carrier. Notice by fax will be deemed received upon transmission with proof of delivery to the receiving party. All communications must be made to: If to City: City of Corpus Christi Director, Parks & Recreation P.O. Box 9277 Corpus Christi, TX 78469 -9277 (361) 880 -3461 if to Recipient: Texas A &M University - Corpus Christi Director of Purchasing 6300 Ocean Drive Corpus Christi, Texas 78412 (361) 825 -5936 Either party may change the address to which notice is sent by providing notice as described above. Recipient must notify City of an address change within thirty (30) days after Recipient's address has changed. XXI. Waivers. The failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, will not be deemed a waiver by said party of any of its rights as enumerated in this Agreement. No waiver of any covenant or condition or breach of any covenant or condition of this Agreement by either party at any time, express or implied, will be taken to constitute a waiver of any subsequent breach of the covenant or condition. XXII. Entirety. This Agreement and all exhibits attached constitute the entire and sole agreement between the parties regarding the subject matter described in this Agreement. No other written documents or oral representations will have any force or effect on the subject matter of this Agreement. XXIII. Captions. The captions contained in this Agreement are not a part of this Agreement and do not in any way affect or alter the terms of this Agreement. C: \Documents and Settings\lmesser \ Desktop \Hotei Tax Recipient Agreemnt- TAMUCC2010.DOC XXIV. Assignment. This Agreement may not be, in whole or in part, assigned or transferred directly or indirectly without prior written consent of City. XXV. The Parties are aware that there are constitutional and statutory limitations on the authority of Recipient (a state agency) to enter into certain terms and conditions of this Agreement, including, but not limited to, those terms and conditions relating to liens on Recipient's property; disclaimers and limitations of warranties; disclaimers and limitations of liability for damages; waivers, disclaimers and limitations of legal rights, remedies, requirements and processes; limitations of periods to bring legal action; granting control of litigation or settlement to another party; liability for acts or omissions of third parties; payment of attorneys' fees; dispute resolution; indemnities; and confidentiality (collectively, the "Limitations "), and terms and conditions related to the Limitations will not be binding on Recipient except to the extent authorized by the laws and Constitution of the State of Texas. Neither the execution of this Agreement by Recipient nor any other conduct, action, or inaction of any representative of Recipient relating to this Agreement constitutes or is intended to constitute a waiver of Recipient's or the state's sovereign immunity to suit. XXVI. The dispute resolution process provided in Chapter 2260, Texas Government Code, and the related rules adopted by the Texas Attorney General pursuant to Chapter 2260, shall be used by Recipient and City to attempt to resolve any claim for breach of contract made by City that cannot be resolved in the ordinary course of business. City shall submit written notice of a claim of breach of contract under this Chapter to Director of Purchasing of Recipient, who shall examine City's claim and any counterclaim and negotiate with City in an effort to resolve the claim. Exec to in duplicate, each of which will be considered an original, on the e� , 2009. ATTEST: CITY OF CORPUS CHRISTI day of Armando Chapa, City Se •I tary An 41 Lscobar, City Manager APPROVED: / r I Lisa Aguilar / Assistant City Attorney For City Attorney , 2009 011..tL,.:. .._ AUTHORIZE'S tifqQ. €a. C: \Documents and Settings \Imesser \Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC S"ti;i.tt !ARV TEXAS A&M UNIVERSITY- CORPUS CHRISTI ctor of Purchasing Date C:\Documents and Settings\Imesser\Desktop\Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC EXHIBIT A Description of Recipient's Activities C: \Documents and Settings \Imesser\Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC Antonio E. Garcia Arts & Education Center List of Programs The Garcia Center offers an array of services that are beneficial for the community and the visitors of our City. Such services include art programs that support the promotion of the members' cultural and artistic heritage and the opportunity to share their legacy with out of town visitors. These programs enhance family pride and unity. Other programs offered at the Garcia Center are intended to support family wellness. These programs assist families to improve the quality of their lives through services offered by TAMUCC doctoral and masters level students. ART PROGRAMS Arts - After - School Program Goal: The Arts After - School program provides neighborhood students with tutoring services and opportunities to participate in art activities after school. Attendance: approximately 30 -50 students grades K -5 each week for 40 weeks, and 50 each week during the summer. All participants from immediate neighborhood of Garcia Center. Activities: University students provide tutoring, lead children in arts activities and serve as mentors for neighborhood students. The participants receive hot meals two times a week as part of a program with the Corpus Christi Food Bank. Location: Garcia Center Clay Sculpting Classes Goal: This program offers free clay sculpting instruction to youth and /or adults on Saturday afternoons. Attendance: Approximately 12 children, ages 5 -12, and their parents or guardians attend each week. Activities: The clay sculpting classes are offered on Saturday afternoons and are free of charge to neighborhood families. The program includes basic clay sculpting instruction and pinch -pot techniques and allows young artist the opportunity to learn about the process of firing their clay works. Instruction is currently provided by local artists that volunteer their time. Location: Garcia Center Summer Art Camps Goal: Summer art camps are designed to develop lasting relationships with families and grow the membership throughout the year and provide students opportunities to enjoy their artistic sides. Dance, performance and visual art activities are offered to youth each summer and to students on holiday break by request. Attendance: Approximately 250 children at the Garcia Center location, ages 5 -12. Up to 100 scholarships are available for the summer camps. Activities: The fine arts summer camps at the Garcia Center are a six -week series of camps, alternating between one and two weeks, which provide both visual and performing arts five days a week. The children (ages 5 to 12 years) are divided into two groups. The groups, ages 5 to 7 and 8 to 12, learn a variety of art 10 C: \Documents and Settings \Imesser\Desktop\Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC disciplines. At the end of a camp session, each group exhibits the artwork they created and performs in a performance for family and friends. Curriculum and format are the same as at the Art Museum with the Garcia Center location serving neighborhood children. The current version of summer art camp has been in existence since 1997. Since then, certain sessions of camp have become so popular, they are now offered two different times throughout the summer. Location: Garcia Center & Art Museum Otte Pasa Open Mic Goal: This program is designed to provide high school age students with a venue to share their talents with the community. Attendance: Approximately 50 to 75 people attend the monthly events. We hope that this number will increase significantly during the upcoming year. Activity: Que Pasa Open Mic is designed to: allow our young local performers a place to explore and develop their talents. Students are invited to the center one Friday night per month to read their own poetry, try their hand at reading someone else's or share their musical or dancing talents. The sessions are open to all students from the surrounding school districts. Que Pasa provides young students in our community an avenue to help cultivate, nurture, and foster their creative and artistic talents. Location: Garcia Center Sunday Family Fundays Goal: Sunday Family Fundays strive to attract families to the Garcia Center and the Art Museum and to art education programs. To build family ties as families experience programs together. Attendance: 1,000 -4,000 youth and families annually Activities: Six "Fundays" are held each year with themes related to exhibits or cultural events. " Fundays" offer creative art activities and visual art performances for the whole family. Refreshments are served to add a festive atmosphere. A recent successful Family Day featured art. ist and children's book author, Carmen Lomas Garza. The South Texas Institute for the Arts partnered with the Corpus Christi Public Library, which resulted in a Family Day with over 1,000 visitors. Location: Art Museum and Garcia Center Dance Classes (Folklorico & Modern Hip Hop Dance) Goal: The dance classes are designed to provide students an avenue for establishing healthy exercise routines and eventually healthy life -long lifestyles. Attendance: Approximately 250 children participate in these groups during the span of a year. Activities: Students attend practice for folkorico dance and hip hop instruction several days during the week. They raise monies through fundraisers throughout the year in order to travel to different places throughout the country and compete against other students. Location: Garcia Center 11 C: \Documents and SettingsMmesser \Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC EXHIBIT B Texas Tax Code § 351.101. USE OF TAX REVENUE. a) Revenue from the municipal hotel occupancy tax may be used only to promote tourism and the convention and hotel industry, and that use is limited to the following: (1) the acquisition of sites for and the construction, improvement, enlarging, equipping, repairing, operation, and maintenance of convention center facilities or visitor information centers, or both; (2) the furnishing of facilities, personnel, and materials for the registration of convention delegates or registrants; (3) advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality or its vicinity; (4) the encouragement, promotion, improvement, and application of the arts, including instrumental and vocal music, dance, drama, folk art, creative writing, architecture, design and allied fields, painting, sculpture, photography, graphic and craft arts, motion pictures, radio, television, tape and sound recording, and other arts related to the presentation, performance, execution, and exhibition of these major art forms; (5) historical restoration and preservation projects or activities or advertising and conducting solicitations and promotional programs to encourage tourists and convention delegates to visit preserved historic sites or museums: (A) at or in the immediate vicinity of convention center facilities or visitor information centers; or (B) located elsewhere in the municipality or its vicinity that would be frequented by tourists and convention delegates; (6) for a municipality located in a county with a population of one million or less, expenses, including promotion expenses, directly related to a sporting event in which the majority of participants are tourists who substantially increase economic activity at hotels and motels within the municipality or its vicinity; and (7) subject to Section 351.1076, the promotion of tourism by the enhancement and upgrading of existing sports facilities or fields, including facilities or fields for baseball, softball, soccer, and flag football, if: (A) the municipality owns the facilities or fields; (B) the municipality: (i) has a population of 80,000 or more and is located in a county that has a population of 350,000 or less; or (ii) has a population of at least 65,000 but not more than 70,000 and is located in a county that has a population of 155,000 or Tess; and (C) the sports facilities and fields have been used, in the preceding calendar year, a combined total of more than 10 times for district, state, regional, or national sports tournaments. C: \Documents and Settings\lmesser\Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC (b) Revenue derived from the tax authorized by this chapter shall be expended in a manner directly enhancing and promoting tourism and the convention and hotel industry as permitted by Subsection (a). That revenue may not be used for the general revenue purposes or general governmental operations of a municipality. (c) The governing body of a municipality by contract may delegate to a person, including another governmental entity or a private organization, the management or supervision of programs and activities funded with revenue from the tax authorized by this chapter. The governing body in writing shall approve in advance the annual budget of the person to which it delegates those functions and shall require the person to make periodic reports to the governing body at least quarterly listing the expenditures made by the person with revenue from the tax authorized by this chapter: The person must maintain revenue provided from the tax authorized by this chapter in a separate account established for that purpose and may not commingle that revenue with any other money. The municipality may not delegate to any person the management or supervision of its convention and visitors programs and activities funded with revenue from the tax authorized by this chapter other than by contract as provided by this subsection. The approval by the governing body of the municipality of the annual budget of the person to whom the governing body delegates those functions creates a fiduciary duty in the person with respect to the revenue provided by the tax authorized by this chapter. (d) A person with whom a municipality contracts under this section to conduct an activity authorized by this section shall maintain complete and accurate financial records of each expenditure of hotel occupancy tax revenue made by the person and, on request of the governing body of the municipality or other person, shall make the records available for inspection and review to the governing body or other person. (e) Hotel occupancy tax revenue spent for a purpose authorized by this section may be . spent for day -to -day operations, supplies, salaries, office rental, travel expenses, and other administrative costs only if those administrative costs are incurred directly in the promotion and servicing expenditures authorized under Section 351.1O1(a). If a municipal or other public or private entity that conducts an activity authorized under this section conducts other activities that are not authorized under this section, the portion of the total administrative costs of the entity for which hotel occupancy tax revenue may be used may not exceed the portion of those administrative costs actually incurred in conducting the authorized activities. (f) Municipal hotel occupancy tax revenue may not be spent for travel for a person to attend an,event or conduct an activity the primary purpose of which is not directly related to the promotion of tourism and the convention and hotel industry or the performance of the person's job in an efficient and professional manner. C: \Documents and Settings \Imesser \Desktop \Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC (g) Nothing in this section shall prohibit any private entity, person, or organization from making subgrants by contract to any other person, entity, or private organization for expenditures under Section 351.101(a)(4). A subgrantee shall: (1) at least annually make periodic reports to the governing body of its expenditures from the tax authorized by this chapter; and (2) make records of these expenditures available for review to the governing body or other person. Added by Acts 1987, 70th Leg., ch. 191, § 1, eff. Sept. 1, 1987. Amended by Acts 1989, 71st Leg., ch. 2, § 14.24(a), eff. Aug. 28, 1989; Acts 1989, 71st Leg., ch. 1110, § 4, eff. Oct. 1, 1989; Acts 1993, 73rd Leg., ch..680, § 3, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 1027, § 1, eff. Aug. 28, 1995; Acts 2001, 77th Leg., ch. 755, § 1, eff. June 13, 2001; Acts 2001, 77th Leg., ch. 1308, § 3, eff. June 16, 2001; Acts 2003, 78th Leg., ch. 209, § 90, eff. Oct. 1, 2003; Acts 2003, 78th Leg., ch. 303, § 1, eff. June 18, 2003; Acts 2005, 79th Leg., ch. 1247, § 1, eff. June 18, 2005. C:\Documents and Settings\imesser \Desktop\Hotel Tax Recipient Agreemnt- TAMUCC2010.DOC