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Ordinance No. 6,720930812 -6 ORDINANCE NO. 6720 • AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH RHONE- POULENC BASIC CHEMICALS CO. DIVISION OF RHONE- POULENC, INC. FOR FIRE PROTECTION AND RESCUE SERVICES; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the Mayor and City Clerk of the City of Baytown to execute and attest to an agreement with Rhone - Poulenc Basic Chemicals Co. Division of Rhone- Poulenc, Inc. for fire protection and rescue services. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 12th day of August, 1993. PETE C. ALFARO, Mayor A'MEST: I EERY , City Clerk ACIO RAMIREZ, S , City Attorney 0 kgaVcou=iV8- 12-93ag=@FUMpM AGREEMENT FOR EMERGENCY PROTECTION SERVICES THIS AGREEMENT is made, entered into and effective as of the 1 st day of September, 1993, by and between the CITY OF BAYTOWN, Texas, a municipal corporation located in Harris County and Chambers County, Texas (hereinafter referred to as the "City" or the "City of Baytown "), and RHONE - POULENC BASIC CHEMICALS CO. Division of RHONE- POULENC, INC., a New York corporation, licensed to do and doing business in the State of Texas (hereinafter referred to as "Rhone - Poulenc "), having a plant and facilities in Harris County, Texas . WHEREAS, Stauffer Chemical Company, predecessor in interest to Rhone - Poulenc, and the City of Baytown entered into an agreement dated September 15, 1989, entitled "Industrial District Agreement between Stauffer Chemical Company and City of Baytown, Texas" (the "Industrial District Agreement "), which provides, among other things, that all of Rhone- Poulenc's Baytown plant and facilities, except as described in Appendix A of the Industrial District Agreement, shall be included in the Baytown Industrial District No. 1 and that, among other things, for an initial term of seven years ending September 14, 1996, the City of Baytown will provide fire fighting support and backup protection to Rhone- Poulenc's Baytown plant and facilities, but shall not be obligated to purchase any additional equipment or build any additional facilities in order to provide such support and backup protection, it being the intent of the parties that the level of protection be that which was being provided by the City as of the date of said Agreement, September 15, 1989; WHEREAS, Rhone- Poulenc's Baytown plant and facilities include both real and personal property used in its refining and chemical manufacturing and research facilities, and office facilities used in direct support of these operations situated either contiguous thereto or separated by roads (hereinafter referred to as the "Rhone- Poulenc Plant" or the "Plant "); WHEREAS, Rhone - Poulenc and the City of Baytown wish to continue the provision of fire fighting and rescue services by the City to the Plant pursuant to the Industrial District Agreement, and, in addition, wish to improve the EXHIBIT A • fire, chemical rand medical emergency response services provided by the City to the Plant, as needed, in support of which Rhone- Poulenc shall make certain donations to the City of Baytown to enable the City's Fire and Rescue Department to acquire certain industrial- related fire fighting equipment and training, in addition to any payments currently being made by Rhone- Poulenc to the City in accordance with the Industrial District Agreement. NOW, THEREFORE, in consideration of the promises and of the mutual covenants and agreements herein contained, the City of Baytown and Rhone - Poulenc agree as follows: 1. The City of Baytown will respond, at the request of Rhone Poulenc, with emergency services for fire, chemical and medical emergencies at the Rhone Poulenc Plant which escalate above the incipient or internal response capability of Rhone- Poulenc's personnel at the Plant, which services will be provided promptly and to the best of the City's ability to the extent the equipment, facilities, personnel, training and other resources available to the City of Baytown will, from time to time, permit. 2. It is understood and agreed by both parties that, in order to assure additional and adequate resources for emergencies above and beyond the City's response capability, each party will maintain active membership in the association known as the Channel Industries Mutual Aid ( "CIMA "), and that the resources of C IMA will be enlisted in the appropriate emergency. 3. The City of Baytown represents that Exhibit A. attached hereto is, to the best of its knowledge and belief, a complete listing of the City of Baytown's fire and chemical protection equipment, facilities, materials, training, personnel and other emergency response resources which, as of the effective date of this Agreement, may be utilized for response in the event of an emergency at the Plant as described herein. The City shall amend Exhibit A. no less frequently than annually to reflect all such resources which have been acquired and/or retired during the City's prior fiscal year, irrespective of the source of such additional resources including purchases and acquisitions with funds from the Dedicated Fund defined in Paragraph 5. The City shall prepare an amended Exhibit A within sixty (60) days after the end of the City's fiscal year, in each Contract Year during the Term or terms hereof, and shall provide to Rhone- Poulenc a copy of each such amended Exhibit A. within thirty (30) days thereafter and/or within thirty (30) days after Rhone- 2 iPoulenc makes a request therefor. 4. In performing its services hereunder, the City of Baytown shall use, at a minimum, that prudent degree of care and skill in accordance with all applicable standards established by the State of Texas for emergency response personnel. The City of Baytown Rules and Regulations for the Baytown Fire and Rescue Services and Operations Manual ( "Standard Operating Procedures ") governing response to the various emergencies, in conjunction with the availability of resources, shall dictate the City's initial response to emergency situations reported by the Plant to the City. The Chief of the City of Baytown Fire and Rescue Services or the senior Fire Officer on the scene, i.e. the Incident Commander, shall, with the assistance and cooperation of Rhone- Poulenc Plant officials and analysis of the stand -by resources required, determine the level of additional City of Baytown, CIMA and/or other outside response required. 5. Rhone - Poulenc shall make annual donations to the City of Baytown, during the term or terms of this Agreement, as provided in this Paragraph and subject to Paragraph 6. All funds represented by such donations shall be set aside and maintained by the City of Baytown in a segregated, dedicated fund (hereinafter referred to as the "Dedicated Fund ") dedicated solely for the purchase and/or acquisition of industrial - related fire fighting and/or hazardous materials response equipment and/or training chosen by the Chief of Fire and Rescue Services after consultation with Rhone- Poulenc (those items agreeable to Rhone - Poulenc are hereinafter referred to as the "Equipment and Training ") for use solely by the City of Baytown Fire and Rescue Services in performing its fire, chemical and medical emergency response services, including those services which will be performed under the terms of this Agreement. Rhone - Poulenc shall donate no less than ten thousand dollars ($10,000.00) in the first year of the initial term of this Agreement, and no less than five thousand dollars ($5,000.00) in each year thereafter, adjusted as provided hereinafter, for so long as this Agreement shall remain in effect, subject to the provisions of Paragraph 6. and provided the funds are used in a manner acceptable to Rhone - Poulenc. The amount of each such donation after the • first Contract Year, as defined in Paragraph 10. hereof, of this Agreement shall be increased in an amount equal to the percentage increase in the Consumers Price index for the region in which Texas is located (the "CPI ") during the last three calendar months in the Contract Year immediately preceding the current Contract Year (the current Contract Year is the year during which such donation is to be made) over the CPI for the Base Year. The CPI shall mean and refer to the final regional consumers price index reported by the Bureau of Labor Statistics of the United States Department of Labor. The CPI for the Base Year shall be the arithmetic average of the CPI numbers finally reported for the three calendar months immediately preceding the effective date of this Agreement. The CPI for the current Contract Year shall be the arithmetic average of the CPI numbers finally reported for the last three calendar months in the Contract Year immediately preceding the Contract Year in which the donation is to be made. Each such donation shall be made no later than sixty (60) days after the beginning of each Contract Year. 6. If at any time the City of Baytown shall invade or use all or any portion of the Dedicated Fund for any purpose or purposes other than for the purchase of Equipment and Training acceptable to Rhone - Poulenc for the City of Baytown Fire and Rescue Services, or if at any time the City of Baytown reduces the budget of the City of Baytown Fire and Rescue Services based on the existence of the Dedicated Fund, or if at any time the City of Baytown reduces the budget of the City of Baytown Fire and Rescue Services in an amount materially disproportionate to a reduction in the budgets of the other City departments, then Rhone- Poulenc shall have the right, in its sole discretion, to terminate its donations to the City under this Agreement. 7. During each Contract Year of this Agreement, the Chief of the City's Fire and Rescue Services shall prepare and deliver to Rhone - Poulenc a list or lists of industrial- related fire fighting and/or hazardous materials response equipment and/or training the Chief recommends be purchased or acquired by the City for Fire and Rescue Services during the Contract Year with funds from the Dedicated Fund. The Chief of the City's Fire and Rescue Services shall consult with and seek the input and advice of Rhone - Poulenc, through its Plant Manager or his designee, in determining the final recommendations to be made in this respect to the City Council of the City of Baytown. The parties understand that the City Charter requires that the City Council of the City of Baytown shall make the final determination regarding the appropriateness of purchases and expenditures. 8. The City shall use its best efforts to purchase or acquire the Equipment and Training as soon as practicable and in compliance with all requirements for competitive bids/proposals specified by the City Charter and/or applicable State law. All such purchases and acquisitions shall be added to Exhibit A. referred to in Paragraph 3. hereof. 9. Rhone- Poulenc shall replace material used, and shall repair or replace equipment lost or damaged, in the control of a fire or emergency situation at the Plant, in cash based on current replacement cost or in kind, in accordance with Item 8., Section II. Conditions of Membership of the CIlVIA Bylaws, provided the equipment and/or material was famished by CIMA members, including the City of Baytown, or other Industrial Mutual Aid Organizations, in response to a properly placed request. Damage to and loss of equipment refers to damage and loss as a direct result of the emergency condition and not to wear and tear in the normal operation of emergency equipment. Material used includes, but is not limited to, fire fighting foam, hazardous materials containment or absorbent materials and chemical protective clothing and equipment. The obligations in this Paragraph 9. shall be in addition to, and shall remain in effect notwithstanding termination of, the donations described in Paragraph 5., in connection with any response by the City of Baytown Fire and Rescue Services to a fire or emergency at the Plant. 10. The term of this Agreement shall commence on the effective date of this Agreement and shall continue for an initial term of five (5) years from such date (hereinafter referred to as the "Initial Term "). Following the Initial Term, this Agreement shall automatically be renewed for additional successive terms of three (3) years each, unless (a) terminated by either party as provided elsewhere herein, or (b) terminated as of the end of the Initial Term or any renewal term by either party upon at least six (b) months written notice prior to the end of the Initial Term or any such renewal term. In connection with the foregoing, if either party wishes to renegotiate the terms of this Agreement with respect to the next renewal term, such party shall give the other party at least nine (9) months written notice prior to the end of the Initial Term or the applicable renewal term of its desire to negotiate an amendment or amendments to this Agreement. Each fiscal year during the Initial Term and each successive term of this Agreement, commencing on September 1 of each year and ending on August 31 of the following year, Sshall be deemed a "Contract Year" hereunder. 5 11. The parties understand and agree that, notwithstanding anything to the contrary in this Agreement, including the termination for any reason of this Agreement by either party hereto, the Industrial District Agreement shall remain in full force and effect pursuant to its terms and conditions, unmodified, throughout the term or terms thereof. 12. The parties understand and agree that, notwithstanding the termination of the Industrial District Agreement for any reason, this Agreement shall remain in full force and effect pursuant to its terms and conditions, throughout the term or terms hereof, provided, however, that if, under Paragraph 7. of the Industrial District Agreement, the City and/or Rhone - Poulenc are unsuccessful in preventing an annexation or incorporation by another municipality, or if the Industrial District Agreement is terminated for any reason, Rhone- Poulenc shall have the right, in its sole discretion, to terminate this Agreement at any time after the effective date of such annexation or incorporation or the termination of the Industrial District Agreement. 13. In the event the terms and conditions of this Agreement are rendered ineffective or their effect changed by the Constitution, any Legislative changes, or any interpretation of Texas law, both parties agree that this Agreement shall be renegotiated to accomplish the intent and purposes of this Agreement. 14. Any controversy, dispute or claim arising out of or relating to this Agreement or the breach thereof will be settled by arbitration before three arbitrators in accordance with the Rules of the American Arbitration Association (the "AAA ") then in effect. The award rendered by the arbitrators shall be final and binding upon the parties and judgment upon the award may be entered and enforced in any court having jurisdiction. Any such arbitration will be conducted in the city nearest the City of Baytown having an AAA regional office. The arbitrators will have no authority to award punitive damages nor any other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement. Prior to initiation of arbitration, the aggrieved party will give the other party written notice describing the claim and amount as to which it intends to initiate action. 6 15. By their "signatures set forth below, the City Manager and the City Clerk of the City of Baytown warrant and represent that (a) the City has the power to enter into this Agreement; (b) this Agreement and the terms and conditions set forth herein have been duly approved and adopted in its entirety by the City Council of Baytown and represent the enforceable contract of the City; and (c) all such additional actions necessary or appropriate to ensure the enforceability of this Agreement have been taken by the City of Baytown. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: ATTEST: Secretary City Clerk RHONE- POULENC, INC. By: Title: CITY OF BAYTOWN I: Title: