HomeMy WebLinkAboutC2015-418 - 9/22/2015 - Approved Page 1 of 8
AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND
SOUTH TEXAS BOTANICAL GARDENS& NATURE CENTER ("RECIPIENT")
(HOTEL OCCUPANCY TAX REVENUE
RECIPIENT AGREEMENT)
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 South Texas Botanical Gardens
& Nature Center. a Texas non-profit corporation, qualified as a 501(c)(3) organization under 26
U.S.C. Section 501(cX3).
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/or those programs which also promote tourism and the
convention and hotel industry within the City of Corpus Christi.
II. Term. This agreement commences on the 1st day of October, 2015 and terminates on the
30th day of September, 2016.
III. City's Duties. City agrees to pay Recipient $20,000.00 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- 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) advertising and conducting solicitations and promotional programs to attract tourists and
convention delegates or registrants to the municipality or its vicinity;
(B) the activities are in the categories that are eligible for funding as described in Section
351.101(ax3)of the Texas Tax Code, copy attached as"Exhibit"; and
(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.
2015-418
9/22/15
Ord. 030620
South Texas Botanical Gardens INDEXED
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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
tourism to 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 Activities 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 Activities attendance.
(D)A statement of Recipient's Activities revenues and expenditures.
(E) Number of attendees that reside outside the City limits that visited the South Texas
Botanical Gardens &Nature Center.
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.
VIII. 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.
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 Activities. 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.
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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, 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 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.
XVI. Termination.
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(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 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, Recipient must repay
all Grant funds awarded, whether those funds were expended on Eligible Activities or
not.
XVII. 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.
XVIII. 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. 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 communications must
be made to:
If to City:
City of Corpus Christi
Budget Director
P. 0. Box 9277
Corpus Christi, TX 78469-9277
If to Recipient
South Texas Botanical Gardens & Nature Center
Attn: Executive Director
8545 S. Staples
Corpus Christi,Texas 78413
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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.
XIX. 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. Notwithstanding any indulgence of any breach by the Recipient of the
provisions of this Agreement, it is expressly understood that the City may at any time avail itself
of its remedies under this Agreement, including the right to terminate the Agreement on account
of breach or default.
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 i duplicate, each of which will be considered an original, on the day of
, 2015.
CITY OF CORPUS CHRISTI
CDav ATTEST: ReLaxze--
f•
REBECCA HUERTA
Ronald L. on, City anager CITY SECRETARY
APPROVED: D-1-e- 1 5 , 2015
Lisa Aguila sistant City Attorney
For City Attorney OICLIQ(02-0
U I NUr<t tt
Y MUNCIL ZZ
....:'i
SECRETA
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SOUTH TEXAS BOTANICA GARDENS & NATURE CENTER
By: , . A.r At, -(M4-01(.
Name: YlAt Ina , A '
Title:
Date: l2—�
Page 7 of 8
EXHIBIT
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 less; 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.
(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
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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). 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.