HomeMy WebLinkAboutC2012-357 - 7/31/2012 - ApprovedPage 1 of 9
AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND
Harbor Playhouse Company, lnc.("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
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
Harbor Playhouse Company, Inc. ("Recipient"), a Texas non-profit corporation,
qualified as a 501(c)(3) organization under 26 U.S.C. Section 501(c)(3).
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 Chapter 351 of the Texas Tax Code;
Whereas Recipient desires to provide those 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;
Now, therefore, City and Recipient agree as follows:
I. 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.
11. Term. This agreement commences on October 1, 2012 and terminates on the July
31, 2013.
Ill. City's Duties. City agrees to pay Recipient $ 13,335.00 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-Eligible Activities. Use of grant funds by Recipient is limited
to those activities that, without exception, meet all three of the following requirements,
herein referred to as "Activities":
(A) the activities are described in the attached and incorporated Exhibit "All;
(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, and Section
351.101(b), copy attached as "Exhibit B"; and
2012-357
7/31/12
Ord. 02957'7
Harbor Playhouse Co. Inc.
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(C) the activities promote both tourism and the convention and hotel industry
within the City of Corpus Christi.
V. 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.
VI. 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.
VII. Records Retention. Recipient must at all times during the term of this
Agreement, and for five 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.
Vill. 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 listed below, and all Grant funds must be repaid to the City.
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IX. Unexpended funds. Upon termination of this Agreement, Recipient must promptly
refund to City any unexpended Grant funds.
X. 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.
Xl. Modifications and Waivers. No provision of this Agreement may be altered,
changed, modified, or waived.
XII. Relationship between Parties. Nothing in this Agreement shall constitute a
partnership, joint venture, or principal -agent relationship between the parties.
XIII. 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.
XIV. 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.
XV. Indemnity. 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, foss, 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 R'ecipient'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 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 lndemnitees. 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.
XVI. 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 XIII or XIV of this agreement.
(2) The City may terminate the Agreement upon fourteen (14) 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) 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 IV 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,
Recipient must repay all Grant funds awarded, whether those funds were
expended on Eligible Activities or not.
XVII. Severabitity. 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
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automatically be substituted for those that are found to be illegal, invalid, and
unenforceable.
XVII1. Notices. All notices 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. 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. All notices be
made to:
If to City:
City of Corpus Christi
Director, Parks & Recreation
P. 0. Box 9277
Corpus Christi, TX 78469-9277
(361) 880-3461
If to Recipient:
Harbor Playhouse Company, Inc.
1 Bayfront Park -
Corpus Christi, Texas 78401
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.
IXX. 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.
XX. 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.
XXI.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.
XXII. 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 day
of 2012.
441�
Lisa Aguilar
Assistant CitpAttorney
For City Attorney
Recipient Harbor Playhouse
In
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Title:
Date:
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I City Manager
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Description of Recipient's Activities:
The Harbor Playhouse provides year round live theatrical performances ranging
from small studio productions to large major musical productions. These
productions are mounted by a very small paid staff and a large population of
volunteers. In addition to our very aggressive season we provide quality
theatre education classes. These classes include, but are not limited to,
acting, music, dance, and production for all children ages 4 years old
through 18 years old. The Harbor Playhouse is a vital cultural asset to the
entire Coastal Bend Community. Throughout the year we offer The Family
Entertainment Series which is designed to provide live theatrical
performances appropriate for all ages. Included in The Family Entertainment
Series is PLAYtime (Performing Live Art for Youth) in which students are
brought to our theater and witness the magic of live theater at a price that
makes it accessible to all education venues.
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
(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 351.101(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.
(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). Asubgrantee 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.