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Res 141-94 9/6/1994RESOLUTION NO. i q'- C" A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, AUTHORIZING THE MAYOR TO EXECUTE AN OPERATION AND MAINTENANCE CONTRACT WITH THE MPEC CORPORATION; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS DISCUSSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1. The Mayor be and is hereby authorized to execute an operation and maintenance contract on behalf of the City of Wichita Falls with the MPEC Corporation, in accordance with the terms and conditions of said contract, attached hereto and made a part hereof for all purposes. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the 6th day of September, 1994. t ". APPO M A O R ATTEST: City lerk 1 STATE OF TEXAS S COUNTY OF WICHITA S OPERATION AND MAINTENANCE CONTRACT WITH JOINT CITY/COUNTY MULTI-PURPOSE EVENTS CENTER WITH MPEC CORPORATION This agreement, made and entered into this /2 - day of S'epfe.A..(, 1994, by and between the City of Wichita Falls, a municipal corporation, hereinafter referred to as City, " Wichita County, hereinafter referred to as "County, " and the MPEC Corporation, hereinafter referred to as Corporation, " WITNESSETH: WHEREAS, the City and County have previously entered into a joint Multi-Purpose Events Center Agreement dated September 15, 1992, for the purposes specified in said agreement, including the land acquisition, construction and funding of the MPEC Center, said agreement being incorporated herein for all purposes; and, WHEREAS, the necessary land acquisition has been accomplished, and construction on the Center has commenced, and it is now desirable to provide for the operation and maintenance of the Center, and to contract with the MPEC Corporation, a non-profit corporation existing under the laws 2 of the State of Texas, to provide these services on behalf of the City and County. NOW, THEREFORE, in consideration of the premises and the terms, provisions and mutual promises herein contained, it is mutually agreed as follows: City and County hereby contract with the MPEC Corporation for the operation and maintenance of the MPEC Center, such duties and responsibilities to consist of the following: I. CORPORATION'S SERVICES TO BE PROVIDED FOR CENTER OPERATION AND MAINTENANCE The Corporation shall provide the following services in support of the operation of the MPEC Center, which shall be paid for out of the annual budget approved by the City and County: a. The payment of all expenses necessary for the operation and maintenance of the Center complex, including fixtures, furniture and equipment deemed motor vehicles, fi necessary by the Corporation and approved by the City and County in the annual budget. b. The Corporation shall pay the salaries and benefits for all positions and employees hired by the Corporation who are assigned to the maintenance, operation and administration of the Center. c. The Corporation will pay all utility costs associated with the operation of the Center. 3 d. The Corporation will obtain property, casualty and other insurance coverage deemed necessary for the Center in an amount equal to its replacement value. Such policy or policies shall reflect that the City and County are co- insureds as tenants in common.Such insurance shall be reviewed annually by the City and County. e. The Corporation shall provide all purchasing services for the replacement of all major capital items/equipment, as well as office supplies, janitorial supplies, and other purchasing needs of the Center. f. The Corporation shall provide for all daily maintenance of the Center. g. The Corporation shall promote and advertise the availability of the Center so as to maximize its usage to promote tourism and conventions in the City and County. The Corporation and its Executive Director shall be responsible for the scheduling of all events and activities which utilize the Center's facilities. h. The Corporation shall keep complete and accurate books and financial records of all transactions of the Center, and such books and records shall be open to inspection by the County and/or the City at reasonable times. The Corporation shall have an annual independent financial audit, made by a certified public accountant, to be selected by the Corporation and approved by the City Council and the Commissioner's Court. Copies of the annual audit shall be 4 given to both the City Council and the Commissioner's Court. The cost of such audit shall be paid out of the Center's annual budget. II. EXECUTIVE DIRECTOR APPOINTMENT AND REMOVAL a. An Executive Director shall be appointed to manage the operation of the Center under the supervision of the Corporation. Said Director shall be appointed by the Corporation. The Director shall serve at the pleasure of the Corporation, and may be removed at will by a majority vote of the Board membership. b. The Executive Director will appear before the City Council and the Commissioner's Court to report on the state of the MPEC Center on a semi-annual basis, or as requested by the respective governing bodies. III. EMPLOYMENT AND SALARIES The Corporation shall establish the number of employees to constitute the Center, and shall fix the salaries of such employees, it being the intent of the parties hereto that all employees of the Center shall be employees of the Corporation, and shall not be considered employees of the City of Wichita Falls or of Wichita County. Such employees shall receive such salaries and benefits as established by the Corporation, and shall be considered at-will employees, and shall serve at the pleasure of the Corporation. 5 Iv. BUDGET The fiscal year of the Corporation shall be established by the Corporation's Board. The Corporation shall submit its proposed budget with its recommendations to both the City Council and the Commissioner's Court at a time early enough for both governing bodies to make proper allowance in their respective budgets for anticipated expenditures as approved by them. After the budget has been approved by the City and the County, the Corporation shall have the power to transfer funds from item to item within the budget. V. USES AND FEES FOR THE CENTER a. No part of the Center is to be used without fee, as established in a fee schedule to be set and maintained by the Board of the Corporation. b. All revenues received from whatever source for use of the Center facilities, catering revenues or other revenues, shall be remitted on a daily basis to the City's Finance Department for deposit in the "City/County Multi- Purpose Events Center Fund." 6 VI. IMPASSE PROCEDURE In the event the City Council and Commissioner's Court are unable to agree on an annual budget for the Corporation, the following impasse procedure shall be utilized to resolve the issue or issues in dispute. The Mayor shall represent the City and the County Judge shall represent the County in said impasse proceedings. The County Judge and Mayor shall appoint an impartial third member who shall be a citizen of Wichita County. In the event the Mayor and County Judge are unable to agree upon the third member, they shall select a third member mediator from a list of qualified mediators supplied by the American Arbitration Association. If agreement on a mediator cannot be obtained, the Mayor and County Judge shall alternately strike one name from the list until only one name remains. The remaining individual shall serve as the third member of the impasse panel. The decision of the majority members of the panel shall resolve the impasse and be binding on the City and the County for the fiscal year's budget in question. VII. TERM OF AGREEMENT It is the intent of the parties hereto that this Agreement shall remain in effect for an initial term of five 5) years. This Agreement may be extended for additional five 5) year terms upon the approval of the respective parties. 7 Notwithstanding the above, any party to this Agreement may terminate this Agreement by giving one (1) year's advance written notice of its intention to terminate. Termination of this Agreement by any party does not relieve the City or the County from their obligations to fund their share of the annual budget, nor of the Corporation's responsibility to operate and maintain the MPEC Center until the effective date of termination. VIII. GENERAL a. The Corporation agrees to save and hold harmless the County and the City from any claim by third parties arising from the Corporation's operation, maintenance and possession of the MPEC Center occasioned by the negligence of the Corporation or any of its employees. b. The Corporation agrees not to engage in employment practices which have the effect of discriminating against any employee or applicant for employment; and will take affirmative steps to ensure that applicants are employed and employees are treated during employment withoutg regard to their race, color, religion, national origin, sex, age, handicap, or political belief or affiliation. c. If any provision of this Agreement is breached by any party, the aggrieved party or parties may give notice of such breach to the offending party and require compliance with the terms of this Agreement. If any party shall fail to 8 perform any of the obligations or responsibilities specified herein after reasonable notice by the other party or parties, the obligation may be enforced by injunction in a court of competent jurisdiction. d. No party to this Agreement may assign any obligation or responsibility without the written consent of the other parties to this Agreement. e. Any notices required or desired to be sent to any party to this Agreement shall be sufficient if sent by certified mail, return receipt requested, to the following addresses: CITY Office of the Mayor P. O. Box 1431 Wichita Falls, Texas 76307 COUNTY Office of the County Judge Wichita County Courthouse Wichita Falls, Texas 76301 CORPORATION Wichita Falls/Wichita County Multi-Purpose Events Center P. O. Box 630 Wichita Falls, Texas 76307-0630 or to such other address as the parties might indicate to each other in writing from time to time. 9 f. If any part of this Agreement shall be held to be illegal, such part shall be deemed severable, and the remaining parts shall nonetheless be binding, if enough remains to constitute a reasonable, applicable and fair scheme for the maintenance and operation of the Center. g. This Agreement constitutes and expresses the entire agreement between the parties hereto, in reference to any of the matters and things herein provided for hereinabove discussed or mentioned, all promises, representations and understandings relative thereto herein being merged. h. This Agreement may not be amended or modified except by amendment duly executed in writing by all parties hereto. WITNESS THE FOLLOWING SIGNATURES AND SEALS: City of Wichit- r- 411W By: Mic_ ael Lam, ayor County of Wichita By: oNickGipson, unty Judge NPEC Corporation 1 By• Kathryn A. eage ,