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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
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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.
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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
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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,
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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
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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
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