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HomeMy WebLinkAboutC2010-559 - 7/20/2010 - ApprovedPage 1 of 6 AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND SOUTH TEXAS BOTANICAL GARDENS & NATURE CENTER ( "RECIPIENT ") (HOTEL OCCUPANCY TAX REVENUE RECIPIENT AGREEMENT) The State of Texas County of Nueces KNOW ALL BY THESE PRESENTS: 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 South Texas Botanical Gardens & Nature Center ( "Recipient "), a Texas non - profit corporation, qualified as a 501(c)(3) organization under 26 U.S.C. Section 501(c)(3). Now, therefore, City and Recipient agree as follows: I. Purpose. Funds provided under this Agreement shall be used solely by Recipient for purposes defined in Texas Tax Code Section 351.101 (a) (3): "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: (3) advertising and conducting solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality." ll. Term. The term of this agreement commences on the 1st day of August, 2010 and terminates on the 31 day of July, 2011. This Agreement cancels and replaces and other agreements between the parties for use of Hotel Occupancy Tax Funds for City Fiscal Year 2010 - 2011. Ill. City's Duties. In City Fiscal Year 2010 -2011, City agrees to pay Recipient total of $kt,'Tfi out of revenue from the City of Corpus Christi's Hotel Occupancy Tax fund for use in accordance with Section I above. In no event will City be liable for an amount in excess of this total grant amount. IV. Recipient's Duties. In consideration for receipt of Grant funds, Recipient agrees to uses these funds to advertise and conduct solicitations and promotional programs to attract tourists and convention delegates or registrants to the municipality to attend Recipient arts programs. V. Eligible Activities. Use of grant funds by Recipient is further limited to those activities that, without exception promote both tourism and the convention and hotel 2010 -559 3f Corpus Christi. Ord. 028683 07/20/10 So. Tx. Botanical Gardens HALEG- DIR1Lisa42011 WDGET12011 Hotel Tax Recipient Agmt- Botanical Gardens.doc INDEXED Page 2 of 6 VI. Promotion of Tourism and the Convention and Hotel Industry. Recipient must actively promote tourism to the City and the City's hotel and convention industry 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 and by working with the local Hotel -Motel and Condominium Associations. 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) An estimate of the total Arts Program attendance. (D) A statement of Recipient's Arts Program revenues and expenditures to conduct solicitations for convention delegates and attract visitors from outside the City territorial limits, VIII. 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. Should Director determine within five years from effective date of this Agreement that Recipient has failed to comply with the requirements contained in this Agreement, the Agreement is subject to termination in accordance with Section XVI1, listed below, and all Grant funds must be repaid to the City. H:\LEG-DJMLisa12011 bUOGET12011 Hotel Tax Recipient Agmt- Botanical Gardens.doc Page 3 of 6 X. Unexpended funds. Upon termination of this Agreement, Recipient must promptly refund to City any unexpended Grant funds. XI. Advertising. Recipient must recognize 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. X11. Modifications and Waivers. No provision of this Agreement may be altered, changed, modified, or waived. X111. Relationship between Parties. Nothing in this Agreement shall constitute a partnership, joint venture, or principal -agent relationship between the parties. XIV. Compliance with Laws. Recipient 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. Director retains the right to take action deemed necessary by Director to enforce this non- discrimination covenant. Violation of this provision will result in the immediate termination of this Agreement. XVI. Indemnity. To the extent allowed by Texas law, Recipient hereby fully agrees to indemnify and hold harmless the City of Corpus Christi, its officers, employees, representatives, licensees, and invitees ( "indemnitees ") against any and all liability, damage, loss, claims, demands, and actions of any nature due to personal injuries including, but not limited to, workers' compensation and death claims, or any property loss or damage of any kind, that arises out of or is in any manner connected with, caused by, either proximately or remotely, wholly or in part, or claimed to have arisen out of, been connected with, or have been caused by, any act or omission, negligence, or misconduct on the part of Indemnitees or Recipient, or Recipient's agents, servants, employees, guests, contractors, patrons, licensees, or invitees participating in or observing Recipient's Activities. Recipient further agrees to indemnify and hold harmless Indemnitees in any situation in which injury or damage results from a violation by the Indemnitees or Recipient, or HALEG- DIRlIsa12011 WDGET2011 Hotel Tax Recipient Agmt - Botanical Gardens.doc Page 4 of 6 Recipient's agents, servants, employees, guests, contractors, patrons, licensees, or invitees, of any law, statute, ordinance, or government order of any kind. Further, Recipient will indemnify and hold harmless Indemnitees where injury or damage results or arises out of the exercise or rights or performance of obligations created by this Agreement. These terms of indemnification are effective regardless of whether said injuries or damages result from the sole negligence, contributory negligence, or concurrent negligence of Indemnitees. Recipient must, at its own expense, investigate all claims and demands, attend to their final resolution either by settlement or otherwise, defend all actions with counsel satisfactory to Indemnitees, and pay all costs and expenses related to such actions on account of liability, damage, loss, claims, demands, or actions, including attorney fees. 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 due to failure by the Recipient to substantially utilize the funds in accordance with this agreement. Director has the sole discretion to make the determination that Grant funds were used for activities that did not fall within the permitted applications of tax revenue under Section 351.101(a)(3) of the Tax Code. The City may terminate the Agreement upon thirty (30) days written notice, specifying that the Director has determined that Grant funds were used for purposes other than those allowed under Section 351.101(a) (3) of the Tax Code, and require Recipient to reimburse the City all Grant funds award. (3) The City may terminate this Agreement 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. Director has the sole discretion to make the determination that Grant funds were used for activities other than those qualifying as Eligible Activities. The City may terminate the Agreement upon fourteen (14) days written notice, and require Recipient to reimburse the City all Grant funds awarded. (B) Recipient may terminate this Agreement without cause upon thirty (30) days written notice to City. If Recipient chooses to terminate the Agreement, H:1LEG- DIRILlsa12011 bUDGET12011 Hotel Tax ReclpientAgmt- Botanical Gardens. doe Page 5 of 6 Recipient must repay all Grant funds awarded, whether those funds were expended on Eligible Activities or not. 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. To the extent possible, similar legal, valid, and enforceable terms will automatically be substituted for those that are found to be illegal, invalid, and unenforceable. XIX. Force Majeuire. With respect to any duties, obligations, or covenants (but not including the Completion Report required by Section Vll) 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. The time when that duty, obligation, or covenant must be performed or consideration must be provided will be extended for a period of time equivalent to the delay due to the cause beyond the control of the party obligated. 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)deposit with an overnight express delivery service, for which service has been prepaid; or (4) 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 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. Q. Box 9277 Corpus Christi, TX 78469 -9277 (361) 880 -3461 If to Recipient: South Texas Botanical Gardens & Nature Center H:1LEG- DIR1Lisa12011 bUDGET12011 Hote# Tax Recipient Agmt - Botanical Gardens.doc Page 6 of 6 8545 S. Staples Corpus Christi, Texas 78413 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. 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. XXIL Entirety. This Agreement constitutes 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. XXIV. Assignment. This Agreement may not be, in whole or in part, assigned or transferred directly or indirectly without prior written consent of City. Executed in duplicate, each of which will be considered an original, on the Zs day of _July , 2011. ATTEST: Armando Chapa City Secretary CIT)6 QF'CORPJdS CMRMTI L. Citv''Manager APPROVED: , 2011 Lisa Aguila , Assistant City Attorney For City Attorney 4T RCRETARY P4. South Texas Botanical Gardens and Nature Center By: Date: Michael Wom ck Executive Director HALEG- DIRIlsa12011 bIJDGETM11 Hotel Tax Recipient Agmt-BotanicalGardens.doc