Res 083-2013 8/6/2013RESOLUTION NO. 83 -2013
Resolution Authorizing The City Manager To Execute An Agreement
With The Museum Of North Texas History For Museum Related
Display Floor Space At Wichita Falls Regional Airport
WHEREAS, the Museum of North Texas History desires to build a permanent
aircraft - related display area in the new Wichita Falls passenger terminal building; and
WHEREAS, as a condition of this display area, the City Council has expressed a
desire for the Museum to raise private donations for the construction of this display
area; and
WHEREAS, the Museum has reached the funding goals set by the City Council;
and,
WHEREAS, the City Council desires to enter into an Agreement with the
Museum to define its future working relationship in regards to Museum related display
space in the new passenger terminal building, tentatively scheduled to be complete in
October of 2014.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
After the Museum of North Texas History has provided sufficient funds to provide
for half of the construction costs for the display floor space at Wichita Falls Regional
Airport, then the City Manager is authorized to execute the attached Agreement
between the City of Wichita Falls and The Museum of North Texas History to
Authorize Museum to Manage Display Space at Wichita Falls Regional Airport,
with changes thereto in a form approved by the City Attorney.
PASSED AND APPROVED this the 6th day of August, 2013.
CLOI-X, & IL,
MAYOR
ATTEST:
Acting City Clerk
Agreement between the City of Wichita Falls and The Museum of North
Texas History to Authorize Museum to Manage Display Space at Wichita
Falls Regional Airport
This agreement between the City of Wichita Falls, ( "City") a Texas municipal corporation, and The Museum of
North Texas History ( "Museum "), a Texas non - profit corporation, describes the conditions for the Museum to
manage historic aviation related displays at the City's Wichita Falls Regional Airport ( "WFRA ").
1. Consideration. Upon receipt of funds from the Wichita Falls 4B Sales Tax Corporation and required matching
funds, the City will add approximately 4,743 square feet to its proposed WFRA terminal building, which will be used
to display items of historical interest to the local region. This added area will be known as the "display space ". In
exchange for this license from the City to occupy said display space, the Museum agrees to manage said display
space.
If the City fails to receive its matching funds for the display space prior to September 17, 2013, then the City will
not construct the aforementioned display space and this agreement willautomatically terminate.
Upon completion of the display space, the Museum will manage and maintain the display space. The City will
provide for the electrical and natural gas utility expenses for operation of the display space. The City intends to
provide for maintenance and replacement of items, such as light bulbs and air filters, that are part of the overall
operation of the building. However, the City will not be liable to the museum for any failure to provide for such
maintenance, services, or items. Any failure of the City to provide for the expenses described herein shall not be
actionable against the City as damages, and the only remedy of the Museum for any failure to provide for such
expenses shall be to terminate this agreement.
2. Scope of Duties.
The parties will keep each other informed of good phone numbers, addresses, and email addresses of points of
contact for their respective organizations. For purposes of this agreement, the City's Director of the Department of
Aviation, Traffic, and Transportation ( "Director ") will be the point of contact for the City.
a. The Museum agrees to:
• Provide one Curtiss -Peek JN4D for display,
• Transport one Air Force T -38 to the WFRA area for display,
• Provide all insurance required by the U.S. Air Force for the T -38 to be transported and displayed,
• Mount and maintain both aircraft in a suitable display posture,
• Provide display materials relevant to the era represented by the aircraft,
• Provide barriers to safely secure all display materials from direct public access
• Provide insurance for all aircraft displayed, including property and liability insurance in an amount
that conforms to the requirements of the U.S. Air Force and the City
• Annually provide evidence of insurance as described above. It is anticipated that the U.S. Air
Force will require insurance for the full replacement value of all aircraft and aircraft related items
displayed through the United States Air Force Static Display Program,
• Obtain the approval of the City before placing any item on display for public viewing,
• Modify any exhibits as required by the City to ensure all displays are made in a safe and tasteful
manner,
• Promptly inform the City of any injuries or safety- related complaints, and remedy all safety issues
promptly upon notice thereof,
• Maintain display space in a clean and aesthetically pleasing manner
• Ensure the exhibits are available for viewing on the day the terminal opens to the public. The City
will give Museum a minimum of 30 calendar days notice of that anticipated public opening date.
• Provide storage and transportation for any interim period where the display items are temporarily
stored while construction is being completed,
• Adhere to the operational hours for WFRA established by the Director, unless otherwise approved
ten calendar days in advance of the requested after -hours event
• Replace or remove display items that are in disrepair or otherwise poor condition, as determined
by the Director
• Communicate to the Director, at least 48 hours in advance, of any groups (20 or more people) that
have made prior arrangements with Museum to view the displays
• Remove any hazardous materials on the displayed items, or materials on the displayed items, that
may damage, contaminate, present a public hazard and/or stain the WFRA facility, prior to
displaying the items,
• Remove any items from the displayed items that may injure the public, including, but not limited
to, jagged edges, spills, volatile chemicals, etc.
• Avoid removing items placed on display, except as approved by the City. All Display materials are
considered permanent and static displays. Removal and inclusion of future display items, approved
in advance by the Director, shall be at the full expense of Museum, unless otherwise agreed upon
through Director and/or City Council action. These costs include, but are not limited to, providing
terminal building access to the display space, as well as security related items that may impact the
safe and efficient movement of the public, as determined by the City's Director.
• Adhere to all public and commercial air travel security related procedures as established by the
City's Director,
• Maintain at least I 1 feet of unobstructed, continuous space between display barriers to allow for
public travel, as measured from barrier to barrier.
• Adhere to all Federal guidelines pertaining to airport operations and security,
• Maintain its nonprofit tax status and corporate status in good standing with federal and state
authorities,
b. The Museum shall not:
C. City will:
• Alter the walls, floors, ceilings, mechanical, and other structural components of the terminal
building without the prior consent of the Director. The Director intends to approve or disapprove
the request to modify the structure within 30 days of any request, but may terminate the completion
of any structural changes at any time. Any expenditure associated with structural alterations will be
solely incurred by Museum, if requested by Museum, unless otherwise agreed upon through
Director and/or City Council action.
• Participate in any activities that may disrupt on -going air carrier operations and commercial
passenger safety/security.
• Install any commercial advertising without the prior approval of the Director. Advertising for
Museum activities, such as fundraisers, will be allowed. The Director, however, must approve the
scope of such advertising in the WFRA. The Director will respond within 5 working days of the
initial request,
• Hang, install, or affix any item on the interior and exterior structure of the WFRA building without
the prior consent of the Director.
• Violate or cause the City to violate any terms of the City's lease with the Department of Defense
and United States Air Force,
• Cause operational disruption to WFRA tenants, occupants, or users, including, but not limited to,
air carriers, rental car companies, and the Transportation Security Administration
• Maintain the permanent structure of the Museum display space to include ceilings, floors, exterior
walls, and mechanical systems,
• Provide utility services to include electricity and natural gas systems inherent to public comfort in
the floor space identified in the display space.
• Maintain Heating, Ventilation, Air Conditions ( "HVAC ") system settings to those set in some
other public areas of the terminal, unless the HVAC system is undergoing repairs or maintenance
or service disruption,
• Provide Museum with access to City-owned video monitoring records should a need arise to
review surveillance footage to the extent such review does not, in the judgment compromise
security for the airport, and to the extent such access is not prohibited pursuant to federal or state
laws or regulations,
• Provide substitute display floor space should the need arise for the City to expand into the
identified display space for increased terminal passenger operations. The City agrees to:
• Provide approximately 4,743 square feet of substitute floor space
• Provide display space within the roofline and exterior walls of the terminal building
• Terms of this agreement would also apply to the newly provided space, unless otherwise
renegotiated by both parties
• Provide limited storage space (not to exceed 50 square feet) for Museum display needs,
• Provide parking for Museum display visitors to WFRA. At City discretion, the public parking may
or may not be subject to fees.
d. City does not intend to:
• Provide employees to staff the display space. Museum may staff the display space during WFRA
operating hours at its own expense,
• Unreasonably withhold communication and written response to Museum once a request has been
made,
• Use Federal Aviation Administration grant funding for construction of display floor space and
display space operations. The City, at its discretion, may use FAA Entitlement and Texas
Department of Transportation Aviation Division funds for facility structural and maintenance
repairs.
e. At any time, the City may enter any display space and make such changes as are necessary to:
• avoid violating the City's lease with the U.S. Air Force,
• protect aircraft security,
• protect passenger or facility safety,
• ensure continuity of uninterrupted terminal use and air travel, or
• ensure public health and safety.
Notwithstanding, if the City determines that any of the aforementioned problems exist with the display, then, if time
permits, it will make reasonable attempts to provide the Museum with at least 5 days notice of said problem and
suggested corrective action. In no event will the City be liable to the Museum for any damage to the display
occurring as a result of City corrective action or otherwise.
3. Term of Agreement. The term of this Agreement shall be for 25 years after its effective date, and shall
automatically renew for additional one year periods unless terminated prior to renewal. Notwithstanding, either
party may terminate this Agreement at any time, with or without cause, on at least 90 days notice to the other party.
In addition, this Agreement shall automatically terminate upon termination of the lease between the City and
Sheppard Air Force Base for commercial and general aviation activities on property leased from the Department of
Defense and the United States Air Force. The City recognizes that donors have provided funds to the City for part of
the cost of adding the display area to the terminal. If the City terminates this agreement within this initial 25 -year
period without cause and eliminates the airplane display area in connection with such termination, then the City will
refund to the aforesaid donors a prorated amount of the funds provided by said donors, to the extent said donors have
made preservation of airplane display area a condition of providing the funds as a match for the 413STC funds
provided for this display. The aforementioned proration of the donated amount will be in accordance with the
amount of time the display was permitted by the City. At any time, the City may terminate this agreement without
penalty if the United States Air Force or other federal or state agency informs the City that termination is necessary
to ensure the City complies with federal or state laws, regulations or directives.
After placement of City-owned items in the display space, the Museum may not remove City-owned items. At the
time of termination, the Museum may remove Museum -owned materials from the display space. Any materials
remaining in the display space 90 days after the effective date of the termination shall be considered transferred to
the City and shall become the property of the City.
Within 90 days after termination of this Agreement, the City may require the Museum to restore the walls and
ceilings to their original state. If the Museum fails to restore such walls and ceilings to their original state, the City
may make such restoration and charge the costs of such restoration to the Museum. The Museum shall pay the costs
of such restoration within 30 days after notice by the City to restore in accordance with this paragraph.
4. Appeal of Decision of City's Director of AT &T. If the Museum requests a decision of the Director pursuant to
this Agreement, then the Director shall have five days to make a determination on said request presented by the
Museum. Decisions in regards to Museum requests must be made in a timely manner. The Director will consider
the input of the Museum in making a determination. If the Museum disagrees with any decision made by the
Director, Museum shall have the option to appeal that decision in writing to the City's City Manager. The writing
requesting such appeal shall be provided to the City Manager with a full and complete description of the reasons for
the disagreement and basis for the Museum's position. In the event of such appeal, the City Manager will appoint a
committee to review the Museum request the appeal. The committee will have 10 days to review and/or conduct a
hearing on the appeal.
5. Governing Law and Dispute Resolution. This agreement is performable and is to be governed by the law
applicable in Wichita County, Texas. Sole venue for any action arising under this agreement shall be in Wichita
County, Texas.
6. Indemnification and Limit of Liability. Museum expressly agrees to release, defend, indemnify and hold
harmless the City and the United States Air Force and the City and United States Air Force's officers, agents, and
employees from injuries to persons or damage to property proximately caused by conditions of or occurrences within
the display or display space. The Museum expressly agrees to defend, indemnify and hold harmless the City, its
officers, agents, and employees in accordance with this clause regardless of whether the injury or damage is caused
in whole or in part by the alleged acts or omissions of the City or any condition of any property owned or controlled
by the City.
The City shall not be considered a bailee of property placed in the display space by the Museum. The City shall not
be liable for the return or safekeeping of any items in the display space. The City shall not be responsible for theft,
loss, absence, or damage to any display items.
6. No Third -Party Beneficiaries. Nothing herein shall be construed to give any rights or benefits to anyone other
than the City and Museum.
7. Independent Contractor. In performing services under this agreement, the relationship between City and
Museum is that of independent contractor, and City and Museum by the execution of this Agreement do not change
the independent contractor status of Museum. No term or provision of this Agreement or act of either party in the
performance of this Agreement shall be construed as making Museum or any of its agents or employees into an
agent, servant, or employee of City.
8. No Assignment. The Museum may not assign, transfer or subcontract this Agreement or any of its rights or duties
under this Agreement without the prior written consent of the City.
9. Force Majeure. In the event a Party is prevented from performing underthis Agreement by circumstances beyond
its reasonable control (for example, act of God, war or terrorism) then any obligation owing by such Party shall be
suspended without liability for the period during which the Party is so prevented from performing.
10. Notice. All notices or demands to be given under this Agreement by either Party to the other shall be in writing
and given either by: (a) personal service or (b) U.S. Mail, mailed either by registered or certified mail, return receipt
requested, with postage prepaid. Service shall be considered given when received if personally serviced or if mailed
on the third day after deposit in any U.S. Post Office. The address to which notices or demands may be given by
either Party may be changed by written notice given in accordance with the notice provisions of this section. At the
date of this Agreement, the addresses of the parties are as follows:
City of Wichita Falls Museum of North Texas History
Director of AT &T Executive Director
2100 Seymour Highway 720 Indiana Avenue
Wichita Falls, Texas 76301 Wichita Falls, Texas 76301
11. Waiver. The waiver by either Party of a breach of any term or provision of this Agreement shall not operate or
be construed as a waiver of any subsequent breach of the same provision or of the breach of any term or provision of
this Agreement.
Executed, this the day of
City of Wichita Falls
Darron Leiker, City Manager
Attest
City Clerk
2013.
Museum of North Texas History
Charles Campbell, Executive Director
Attest