ORDER NO. 29745 APPROVE COMPLETED "TEXAS YES" PROGRAM CONTRACT BETWEEN KERR COUNTY AND TEXAS DEPARTMENT OF AGRICULTURE WITH RESPECT TO 2006 TEXAS ARTS AND CRAFTS FAIR MARKETING PROGRAM Came to be heard this the 26th day of June, 2006, with a motion made by Commissioner Williams, seconded by Commissioner Nicholson. The Court unanimously approved by vote of 3-0-0 to: Approve the "Texas Yes" Program Contract between Kerr County and the Texas Department of Agriculture with respect to the 2006 Texas Arts and Crafts Fair Marketing Program, qualified by Mr. Miller, submitting proof to the County Auditor that the expenditures are in order, and authorize County Judge to sign same. ~~ 7~~ o~ COMMISSIONERS' COURT AGENDA REQUEST PLEASE FURNISH ONE ORIGINAL AND TEN COPIES OF THIS REOUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT. MADE BY: Bob Miller OFFICE: MEETING DATE: June 26, 2006 TIME PREFERRED: SUBJECT: Consider, discuss and take appropriate action to approve completed "Texas Yes" Program Contract between Kerr County and Texas Department of Agriculture with respect to 2006 Texas Arts and Crafts Fair Marketing Program. EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON) NAME OF PERSON ADDRESSING THE COURT: Bob Miller ESTIMATED LENGTH OF PRESENTATION: IF PERSONNEL MATTER -NAME OF EMPLOYEE: Time for submitting this request for Court to assure that the matter is posted in accordance with Title 5, Chapter 551 and 552, Government Code, is as follows: Meeting scheduled for Mondays: THIS REQUEST RECEIVED BY: THIS REQUEST RECEIVED ON: 5:00 P.M. previous Tuesday. All Agenda Requests will be screened by the CounTy Judge's Office to determine if adequate information has been prepared for the Court's formal consideration and action at time of Court Meetings. Your cooperation will be appreciated and contribute towards your request being addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners' Court. GRANT AGREEMENT Texas Yes! Hometown STARS Program I. RECITALS 1.1 WHEREAS, Grantor has established the Texas Yes! Hometown STARS Program to provide reimbursable matching funds to rural communities to promote local tourism, boost local economies and attract new jobs and dollars; and 1.2 WHEREAS, Grantee has applied for a matching reimbursable grant from the Texas Yes! Hometown STARS Program and has met all requirements for receiving the Grant. 1.3 NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: II. DEFINITIONS 2.1 "Agreement" means this Grant Agreement and all attached exhibits. 2.2 "Event" means the Official Texas Arts & Crafts Fair to be held May 26-29, 2006, in Kerrville, Texas. 2.3 "Event Amount" is $36,018.00. 2.4 "Grant" means the funds spent by Grantee for the Event that, subject to the requirements of this Agreement, shall be reimbursed by Grantor in an amount not to exceed $10,000.00. 2.5 "Grantee" means County of Kerr, 700 Main Street, Kerrville, Texas 78028. 2.6 "Grantee's Agent" means Mr. R.B. Miller, Executive Director of the Texas Arts & Crafts Educational Foundation. Grantee's Agent shall be responsible for all aspects of promoting the Event, including but not limited to: carrying out the Event objectives, submitting periodic reports, and maintaining contact with the Texas Yes! Hometown STARS Program. 2.7 "Grantor" means the Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711. 2.8 "Funding Coordinator for Marketing and Promotion" means Grantor's representative responsible for coordinating the Texas Yes! Hometown STARS Program. 2.9 "Term of Agreement" is date of Grantor's signature though December 31, 2006. 2.10 "Texas Yes! Hometown STARS Program" means Grantor's rural economic development program to provide reimbursable matching funds to rural communities to promote local tourism, boost local economies and attract new jobs and dollars. Page 1 of 8 2.11 "Texas Yes! Mark" means U.S. TM Reg. No. 2,840,980, which Grantor owns and uses in connection with Grantor's rural economic development programs. III. GRANTOR AND GRANTEE OBLIGATIONS 3.1 Award by Grantor. Subject to the provisions of this Agreement, Grantor hereby awards to Grantee the Grant, which Grantee shall use solely for promotion of the Event. 3.2 Performance by Grantee. Grantee shall perform all the activities described in the 6 page Project Proposal that is attached as "Exhibit A" and in accordance with the Project Budget that is included in Exhibit A. Grantee may perform additional promotional activities outside the scope of this Agreement, but such activities are not reimbursable by the Grant, and Grantor will not be liable for the costs associated with any such activities. 3.3 Use of the Texas Yes! Mark. Except as otherwise approved in writing by Grantor, all promotional material that Grantee develops and uses to promote the Event that is part of the Project Proposal and reimbursable under the Grant must bear the Texas Yes! Mark in a manner acceptable to Grantor. Grantee must execute a License Agreement, in the form of "Exhibit B", which governs any and all uses of the Texas Yes! Mark by Grantee. 3.4 Approval of Promotional Material. All promotional materials must be sent to Grantor for approval at least 5 days before the promotional material is produced. Grantor shall have sole authority to approve or deny the design, production or use of any promotional material, including materials that display the Texas Yes! Mark. 3.5 Sponsors. Grantee shall notify Grantor of all sponsors of the Event upon receiving their confirmation or no later than 30 days before the Event. Grantor may withhold Grant funds or terminate this Agreement if Grantor determines that any Event sponsor is adverse to the interest of Grantor or the Texas Yes! Hometown STARS Program. 3.6 Use of Information in Promotion. Grantor may publicize the Grant and Event and use and disseminate the information, data, conclusions, articles, reports, brochures, audio and videotapes, photographs, and other items provided by Grantee. Grantee understands that Grantor is authorized to release any information related to the Event, whether provided to Grantor by Grantee in written or other form, for the purpose of providing information about the Texas Yes! Hometown STARS Program or for any other purpose. 3.7 Funding Statement. All information, data, conclusions, articles, and reports prepared by Grantee for reprint, release, or dissemination shall include a statement that the work was funded, in whole or in part, by the Texas Yes! Hometown STARS Program administered by the Texas Department of Agriculture. 3.8 Use of Photographs. Grantor may use any photographic likeness of Grantee's principals, officers, employees, or any other person in Grantee's control in its marketing materials and all other media. Grantee releases Grantor and all other persons and associations from any and all claims and causes of action that Grantee has or may have in the future, or persons employed by or controlled by Grantee, relating to the presentation of photographs or likenesses in such marketing materials. Page 2 of 8 V. GRANTEE'S REPORTING REQUIRMENTS 4.1 Hometown STARS Community Impact Evaluation Survey. Within 60 days after the Event, Grantee, through Grantee's Agent, shall provide to Grantor a completed Hometown STARS Community Impact Evaluation Survey in the form attached as "Exhibit C". The survey shall include: (a) accomplishments of the Event; (b) the number of first time visitors that attend the Event; and (c) data necessary to measure the increase in sales tax revenues in the community where the Event takes place. 4.2 Rural Tourism Event Questionnaires. Within 60 days after the Event, Grantee, through Grantee's Agent, shall provide to Grantor all completed Rural Tourism Event Questionnaires in the form attached as "Exhibit D". Only individuals that attended the Event may complete a questionnaire, and each individual may complete only one questionnaire. Grantee shall submit questionnaires for at least 20°l0 of Event attendees. 4.3 Final Budget Report. Grantee, through Grantee's Agent, shall provide to Grantor a final budget report in a form that is acceptable to Grantor and that is signed by Grantee's Agent. The report must detail the reimbursement of moneys in accordance with the approved budget and must include receipts that are acceptable to Grantor for all reimbursable expenses. Receipts must meet the requirements of paragraph 6.2 of this Agreement. The final budget report is due 60 days after the termination of the Agreement or the conclusion of the Event, whichever occurs earlier. Grantor will not reimburse Grantee for expenses incurred after the termination of the Agreement. 4.4 Copies of Promotional Materials. Grantee will provide Grantor at least 5 copies of all promotional materials produced with Grant funds, regardless of media type and including printed, recorded and electronic materials that describe or publicize the Event, including but not limited to brochures, press clippings, audio and video tapes, and photographs of sites and signs. With Grantor's written authorization, Grantee may substitute photographs, smaller versions, or other approved format and quantities of materials. 4.5 Photographs. Grantee will provide Grantor at least 5 different photographs at different angles of the Event, including photographs of Event traffic and display of the Texas Yes! Mark. If the Event occurs on multiple, non-consecutive dates, Grantee shall provide five 5 photographs from each Event date. If promotional activities include attendance at tradeshows, Grantee will provide Grantor at least five 5 different photographs at different angles of Grantee's booth at each tradeshow, including photographs of booth traffic and display of the Texas Yes! Mark. 4.6 Failure to Comply with Reporting Requirements. Failure of Grantee to comply with any of the reporting requirements in this Agreement may result in Grantee's ineligibility for future Texas Yes! Home STARS Program funds. Page 3 of 8 V. ACCESS, INSPECTIONS, AUDITS AND INVESTIGATIONS 5.1 Access by Grantor and State Auditor's Office. During the Term of Agreement and for at least three years after termination of the Agreement, Grantee shall allow Grantor and/or the State Auditor's Office access to and the right to examine the premises, books, accounts, records, files and other papers or property belonging to or in use by Grantee and pertaining to this Agreement. Such records shall be maintained by Grantee at a location that is readily accessible to Grantor and/or the State Auditor's Offtce. Grantor further has the right to make a visual inspection of any assets purchased or constructed with Grant funds. 5.2 Audits or Investigations by State Auditor's Oftce. Grantee understands that acceptance of Grant funds under this Agreement acts as acceptance of the authority of the State Auditor's Office, or any successor agency, to conduct an audit or investigation in connection with such funds. Grantee further agrees to cooperate fully with the State Auditor's Office, or its successor in the conduct of the audit or investigation, including providing all records requested. Grantee will ensure that this clause concerning the authority to audit funds received indirectly by subcontractors through Grantee and the requirement to cooperate is included in any subcontract it awards. VI. REIMBURSEMENT PAYMENTS 6.1 Reimbursement Payments. Upon receipt of the completed final budget report, including all required documentation of expenditures, Grantor will begin processing Grantee's reimbursement payment, subject to paragraph 6.4. The reimbursement payment will be equal to one-half of the total dollar amount for each approved and documented expenditure, not to exceed the Grant amount. 6.2 Reimbursable Expenses. Reimbursable expenses are limited to approved travel expenses at State of Texas rates and approved Event expenses, unless specifically approved in writing by Grantor prior to incurring the expense. Grantor will not reimburse Grantee for any unapproved expenses. Grantor will not reimburse Grantee for project expenditures that are not made incompliance with any applicable State purchasing laws and regulations as they apply to municipalities and counties. Grantor shall not, under any circumstances, reimburse for alcoholic beverages, entertainment and charitable or political contributions. Receipts and invoices must be in English, or must be accompanied by a translation in English. All approved reimbursable expenses must be backed by proof of payment, such as stamped paid invoices or receipts. 6.3 No Reimbursement for Misuse of Grant Funds. Grantor may withhold Grant funds under this Agreement and/or may require a refund of Grant funds already disbursed to Grantee if: (a) Grant funds are misused, (b) Grant funds are used in an illegal manner, (c) Grant funds are used for expenditures not listed in the Project Budget, (d) Grantee violates the terms and agreements of this Agreement, or (e) Grantee made any misrepresentations to Grantor in obtaining this Grant. This provision is not exclusive of Page 4 of 8 other grounds for withholding or refunding of funds or any other remedy, civil or criminal, which maybe available to Grantor. 6.4 Availability of State Funds. This Agreement is subject to the availability of state funds. If such funds become unavailable during the Term of Agreement and Grantor is unable to obtain sufficient funds, this Agreement shall be reduced or terminated. VII. TERM AND TERMINATION OF THE AGREEMENT 7.1 Term and Termination. Either party may terminate this Agreement before the end of the Term of Agreement, without cause, by delivering a written notice of termination to the other party. Early termination of this Agreement shall not relieve Grantee from the reporting requirements contained in section IV of this Agreement. 7.2 No Reimbursement Upon Termination. In the event of termination of this Agreement, Grantor shall make no further reimbursements to Grantee beyond those already approved at the time of termination, and Grantee specifically waives all rights to any such funds. VIII. USE AND DISPOSITION OF PROPERTY 8.1 Use of Property. During the Term of Agreement, property acquired shall be used in accordance with this Agreement, to accomplish the public purposes of the Texas Yes! Hometown STARS Grant Program. 8.2 Records of Property. Grantee shall maintain appropriate records of property purchased with Grant funds and shall develop a control system to ensure adequate safeguazds to prevent loss, damage, or theft of the property. 8.3 Disposition of Personal Property. When personal property acquired by Grantee under the Agreement is no longer needed for the Event, property with a current per-unit fair market value of less that $5,000.00 may be retained by Grantee, and property with a current per-unit fair market value of $5,000.00 or more shall be returned to Grantor. Methods used to determine per-unit fair market value must be documented, kept on file and made available to Grantor and/or the State Auditor's Office upon request. Without Grantor's prior written approval, personal property retained by Grantee shall not be altered in any way or used for purposes other than those of this Agreement. 8.4 Intellectual Property. Grantor shall own any intellectual property developed in whole or in part with Grant funds under this Agreement, regardless of value. Grantee may elect to receive aroyalty-Free, non-exclusive, nontransferable, irrevocable license to reproduce, publish, or otherwise use, any copyright, patent, or any other invention or discovery developed under or in connection with Grant funds. IX. AGREEMENT MODIFICATIONS 9.1 Amending Agreement. Except as provided in paragraph 9.6 below, this Agreement embodies the entire agreement between the parties, and there are no covenants, Page 5 of 8 agreements, representations, warranties or restrictions between the parties other than those specifically set forth herein. Except as provided in paragraph 9.2 below, no modification or amendment to this Agreement is valid unless in writing and signed by the parties. 9.2 Budget Transfers. Grantee may transfer funds between or among budget categories with written approval from the Assistant Commissioner for Grantor's Marketing and Promotion Division if the cumulative dollar amount of all transfers is equal to or less than 15% of the total dollar amount of the project. If the cumulative dollar amount of the transfer exceeds 15% of the total dollar amount of the project, Grantee must follow the procedures set forth in paragraph 9.5 for amending the Agreement. Lack of prior approval for budget transfers shall be grounds for denial of reimbursement for the item(s) in question. 9.3 Notification of Change in Grantee's Agent. Grantee must notify Grantor in writing within 30 days if Grantee's Agent changes during the Term of Agreement. Failure to submit required notice maybe grounds for termination of this Agreement. 9.4 Grantor Request for Amendment. Grantor may request an amendment to the Agreement by submitting the requested change to Grantee's Agent in writing. 9.5 Grantee Request for Amendment. Grantee may request an amendment to the Agreement by submitting the requested change, in writing, to the Funding Coordinator for Mazketing and Promotion. All requests for an amendment to the Agreement must include a summary of the Event status and a statement explaining the need for the change. 9.6 Changes Become Part of Agreement. Changes approved in accordance with this section IX become a part of this Agreement, superseding all inconsistent provisions. X. GENERAL TERMS AND CONDITIONS 10.1 Delegation to Third-Party. Grantee is not relieved of its duties and obligations imposed by this Agreement through delegation by Grantee to a third-party. 10.2 Agreement Binding. This Agreement shall be binding on and inure to the benefit of the parties and their officers, administrators, legal representatives, and successors except as otherwise expressly provided herein. Neither party may assign or transfer this Agreement without the written consent of the other party. The parties intend to be legally bound and have executed this Agreement as evidenced by their signatures on the date indicated below. This Agreement is not effective unless and until it has been signed by both parties. 10.3 No Creation of Debt. This Agreement shall not be constmed as creating any debt on behalf of the State of Texas, and/or Grantor in violation of Section 49 Article III of the Texas Constitution. In compliance with Section 6 Article VIII of the Texas Constitution, all obligations of the State of Texas or Grantor hereunder are subject to the availability of appropriations and authorization to pay by the Texas Legislature. Page 6 of 8 10.4 Delivery Methods. Unless specifically provided herein, any notice, tender, or delivery to be given hereunder by any party to another party maybe affected by personal delivery in writing or by mailing the same by registered or certified mail, return receipt requested, and shall be deemed received 5 days after the date of mailing. All notices shall be addressed to the parties at the address stated in the Agreement unless a change of address has been given in the manner provided for in this paragraph. 10.5 Authorized Representative. Each person signing expressly represents that he or she is duly authorized to do so and to bind the party on whose behalf they are signing. All legal documents prepared for Grantee's Texas Yes! Hometown STARS Program must be executed by an individual with the authority to legally bind Grantee. 10.6 Indemnification. To the extent allowed by law and the Texas Constitution, Grantee shall indemnify and hold harmless Grantor, its agents and employees, from any and all claims, demands, and causes of action arising from or related to Grantee's performance under this Agreement. 10.7 No Employer Relationship. Grantee and Grantee's employees and agents have no employer-employee relationship with Grantor. 10.8 Representations and Warranties of Grantor and Grantee. Grantor and Grantee each represent and warrant that it has full right and authority to enter into this Agreement and to grant the other party the rights set forth in this Agreement and that all necessary approvals have been obtained. Each party represents and warrants that it is in good standing in all jurisdictions in which it is required to be so qualified for performance of this Agreement, and all necessary certifications, registrations, approvals and licenses have been obtained, and all necessary fees paid. 10.9 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. if any legal action is necessary to enforce this Agreement, or for any dispute arising out of the operations or actions contemplated herein, exclusive venue shall lie in Travis County, Texas. 10.10 Headings. Captions and headings of the sections or paragraphs of this Agreement are for convenience and reference only and shall not affect, modify or amplify the provisions of this Agreement, nor shall they be employed to interpret or aid in the constmction of this Agreement. 10.11 Severability. If any part of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining part shall remain in full force and effect, and the parties shall promptly negotiate to replace invalid or unenforceable portions that are essential parts of this Agreement. 10.12 Waiver. A waiver by Grantor of any provision hereunder shall not operate as a waiver of any other provision, or continuing waiver of the same provision in the future. Page 7 of 8 10.13 Exhibits. The following instruments are incorporated into this Agreement as exhibits: • Exhibit A-Project Proposal including Project Budget • Exhibit B-License Agreement • Exhibit C-Hometown STARS Community Impact Evaluation Survey • Exhibit D-Rural Tourism Event Questionnaire 10.14 Uniform Grant Management Standards (UGMS). In accordance with Texas Government Code §783.007, this Agreement shall comply in all respects with the Uniform Grant Management Standards (UGMS). In the case of any conflicts between UGMS and this Agreement, the UGMS shall control. XI. TEXAS PUBLIC INFORMATION ACT NOTICE 11.1 ALL INFORMATION PROVIDED BY GRANTEE PURSUANT TO THIS AGREEMENT IS SUBJECT TO THE TEXAS PUBLIC INFORMATION ACT, TEX. GOVT CODE. CHAPTER 552, AND MAY BE SUBJECT TO DISCLOSURE TO THE PUBLIC. By their signatures below, the parties do hereby agree to the terms of this Agreement. Texas Department of Agriculture P.O. Box 12847 Austin, Texas 78711 By: Martin A. Hubert Deputy Commissioner County of Kerr 700 Main Street Kerrville, Texas 78028 Date: Y: , Date: (p ~ Z~ -`.' ^" County Judge, Kerr County ~ a~ CC~ ~O m o ,~ `s k} 14I~O B 06-19-06;03: 41 PM; ;830 896 1822 # 2/ 2 ~'~ ' ~euF Ir upNNrl er7noos PENIYEU TNIB CFRTIFICATG li IYtUED WATTER OF IN ANA710N GstrettlnsurancsAg®nry lnC ONLY AND CONFERS NO RIONTS UPON THE CERTIFICATE , NOLDEA.THt9 CERTIFICATE DOEf NOT A9ENO,F%TFMD OR P,O,Box291425 ALTER THE COVERAGE AFFORDED EY THE PDUCIEB BELOW. 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