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Ordinance No. 7,377950824 -2 ORDINANCE NO. 7377 ® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH THE TEXAS DEPARTMENT OF PUBLIC SAFETY FOR THE SALE OF GASOLINE AND THE USE OF THE CITY OF BAYTOWN FUELING STATION; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and City Clerk of the City of Baytown to execute and attest to an agreement with the Texas Department of Public Safety for the sale of gasoline and the use of the City of Baytown fueling station. 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 24th day of August, 1995. wz�' PETE C. ALFARO, Mayor ATTEST: EILEEN P. RALL, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, , City Attorney 0 legal/ council /augusd8- 24- 95authAGREEdps 9 is MR lax NOT-taLlut STATE OF TEXAS § COUNTY OF HARRIS § This Agreement, made and entered into pursuant to the Interlocal Cooperation Act by and between the City of Baytown, a municipal corporation under the laws of the State of Texas, hereinafter referred to as "the City," and the Texas Department of Public Safety, an agency of the State of Texas, organized and existing by virtue of the laws of the State of Texas, hereinafter referred to as "the Department." WHEREAS, the City maintains and operates certain gasoline tanks for fueling City vehicles; and WHEREAS, the Department desires to purchase gasoline contained in these gasoline tanks; and WHEREAS, the City is willing and able to sell gasoline to the Department as hereinafter provided; NOW THEREFORE, the City and the Department, in consideration of the mutual covenants, agreements and benefits herein contained, do mutually agree as follows: I. AUTHORITY TO PURCHASE GAS The Department may purchase gasoline from the City's Municipal Service Center located at 2113 Market Street, Baytown, TX 77520. H. LIMITATION OF AUTHORITY It is understood and agreed that gasoline will only be sold to the Department if adequate supplies of gasoline are available at the Municipal Service Center, which shall be determined at the sole discretion of the City. Furthermore, both the Department and the City understand and agree that only the following number of units from the corresponding divisions shall be allowed to obtain fuel at the Municipal Service Center: Q(HIBIT A .­.DIVISION NUMBER OF' UNITS Highway Patrol 7 Drivers' License 4 Licenses & Weights 4 Texas Ranger I MTVT 1 For each vehicle authorized by the Department and the City pursuant to this agreement to use the Municipal Service Center, the Department shall provide the division, make, model, model year, license number, vehicle identification number, and unit number. Such information on each vehicle must be provided to the City prior to the Department being allowed to obtain fuel at the Municipal Service Center. No other vehicles will be permitted to use the facility without prior written consent of both parties hereto. III. PAYMENT TO CITY The City will submit to the Department monthly statements which reflect the number of gallons of gasoline purchased by the Department, the purchase price per gallon of gasoline, the applicable state, federal, and superfund taxes per gallon, any registration fee charged by the Texas Department of Agriculture or any successor agency, a six percent (6 %) facility use charge, and the total amount of money owed to the City for said purchases. The purchase price of the gasoline shall be the price at which the City is invoiced by its supplier immediately prior to each sale and shall not take into account any refunds or rebates which the City may receive. The monthly statements shall be mailed to the Texas Department of Public Safety, Attention: Captain Robert E. Martin, 10110 Northwest Freeway, Houston, TX 77092. Within thirty (30) days after the City deposits said monthly statement in a United States Postal Service receptacle., the Department shall pay the City the amount set forth in the statement. Payments shall be made payable to the City of Baytown and shall be mailed to City of Baytown, P.O. Box 424, Baytown, TX 77522, Attention: Finance Department. Any payment not timely paid as indicated herein, shall accrue interest at the rate of 1% per month. I V. TERM The term of this Agreement shall commence on the date of execution hereof and shall • continue until either the City or the Department terminates this Agreement. Either party hereto may terminate this Agreement without cause by giving of ten (10) days written notice to the other party of such party's intent to terminate this Agreement. In the event of such termination, the Department shall pay the City, in accordance with Section III of this Agreement for the gasoline purchased up to the date of termination. V. ADDITIONAL COMPENSATION TO CITY As additional compensation to the City, the Department hereby assigns to the City any rebate or refunds of gasoline taxes the Department may receive or be entitled to in regard to the gasoline purchased by the Department. VI. INDEMNIFICATION The Department agrees to and shall indemnify, hold harmless and defend, the City, its officers, agents and employees, from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including -all expenses of litigation, court costs, and attomeys' fees for injury to or death of any person, or for damage to any property, arising out of or in connection with the services provided by the City under this contract, where such injuries, death or damages are caused by the joint negligence of the City and any other person or entity. It is the expressed intention of the parties hereto, both the Department and the City, that the indemnity provided for in this paragraph is an indemnity by the Department to indemnify, protect and defend the City from the consequences of the City's own negligence, where that negligence is a concurring cause of the injury, death or damage. Furthermore, the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury, death or damage results from the sole negligence of City unmixed with the fault of any other person or entity. VII. ENTIRE AGREEMENT This instrument contains the entire Agreement between the parties relating to the rights hereunder granted and the obligations herein assumed. Any oral representation or modifications concerning this Agreement shall be of no force or effect excepting a subsequent modification in writing signed by all parties hereto. VIII. COMPLIANCE WITH ALL APPLICABLE LAWS The Department shall comply with all rules, regulations, and laws of the United States of America, the State of Texas, and all laws, regulations, and ordinances of the City of Baytown as they is now exist or may hereafter be enacted or amended. 3 XI V. SALE OF INTEREST The Department may not sell or assign all or part interest in activities to another party or parties without the express written approval of the City Manager of such sale or assignment, nor shall Department assign any monies due or to become due to it hereunder without the previous consent of the City Manager. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. XV. NOTICES All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: DEPARTMENT Texas Department of Public Safety Attn: Captain Robert E. Martin 10110 Northwest Freeway Houston, TX 77092 Fax No. 957 -6197 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax No. 420 -6586 XVI . NON - WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements - herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 0 4 xvH. GOVERNING LAW This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XVIII. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. XIX. CONDITIONS BEYOND CONTROL Neither the City nor the Department shall be required to perform any term, condition or covenant of this Agreement so long as performance is delayed or prevented by force majeure, which shall mean acts of God, drought, floods, material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which, by the exercise of due diligence, the City or the Department is unable to prevent or overcome. XX. VENUE This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XXI. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and the Department hereby agree that no claim or dispute between the City and the Department arising out • of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any 5 applicable State arbitration statute, including but not limited to the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Department consents to be joined in the arbitration proceeding if the Department's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XXH. NO THIRD PARTY BENEFICIARIES This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Department and the City only. XXIII. AUTHORITY The officers executing this Agreement on behalf of the parties hereby represent that such officers have frill authority to execute this Agreement and to bind the party he /she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies, each of which shall be deemed to be an original, but all of which shall constitute but one and the same Agreement on the _ day of , 1995, the date of execution by the City Manager of the City of Baytown. TEXAS DEPARTMENT OF PUBLIC SAFETY TOM HAAS, Chief of Finance CITY OF BAYTOWN BOBBY ROUNTREE, City Manager 0 6 L ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR., it Attorney STATE OF TEXAS § § COUNT' OF HARRIS § Before me on this day personally appeared Tom Haas, in his capacity as Chief of Finance of the Texas Department of Public Safety, on behalf of such corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this day of , 1995. Notary Public in and for the State of Texas bAN /gasoline 40 7 AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § This Agreement, made and entered into pursuant to the Interlocal Cooperation Act by and between the City of Baytown, a municipal corporation under the laws of the State of Texas, hereinafter referred to as "the City,"and the Texas Department of Public Safety, an agency of the State of Texas,organized and existing by virtue of the laws of the State of Texas,hereinafter referred to as"the Department." WHEREAS,the City maintains and operates certain gasoline tanks for fueling City vehicles; and WHEREAS,the Department desires to purchase gasoline contained in these gasoline tanks; and WHEREAS, the City is willing and able to sell gasoline to the Department as hereinafter provided; NOW THEREFORE,the City and the Department,in consideration of the mutual covenants, agreements and benefits herein contained, do mutually agree as follows: I. AUTHORITY TO PURCHASE GAS The Department may purchase gasoline from the City's Municipal Service Center located at 2113 Market Street, Baytown,TX 77520. H. LIMITATION OF AUTHORITY It is understood and agreed that gasoline will only be sold to the Department if adequate supplies of gasoline are available at the Municipal Service Center,which shall be determined at the sole discretion of the City. Furthermore,both the Department and the City understand and agree that only the following number of units from the corresponding divisions shall be allowed to obtain fuel at the Municipal Service Center: .DI.... . N JNI ER QF. Highway Patrol 7 Drivers' License 4 Licenses& 4 Weights Texas Ranger 1 MTVT 1 For each vehicle authorized by the Department and the City pursuant to this agreement to use the Municipal Service Center,the Department shall provide the division,make, model, model year, license number,vehicle identification number, and unit number. Such information on each vehicle must be provided to the City prior to the Department being allowed to obtain fuel at the Municipal Service Center. No other vehicles will be permitted to use the facility without prior written consent of both parties hereto. III. PAYMENT TO CITY The City will submit to the Department monthly statements which reflect the number of gallons of gasoline purchased by the Department, the purchase price per gallon of gasoline, the applicable state, federal, and superfund taxes per gallon,any registration fee charged by the Texas Department of Agriculture or any successor agency, a six percent(6%) facility use charge, and the total amount of money owed to the City for said purchases. The purchase price of the gasoline shall be the price at which the City is invoiced by its supplier immediately prior to each sale and shall not take into account any refunds or rebates which the City may receive. The monthly statements shall be mailed to the Texas Department of Public Safety, Attention: Captain Robert E. Martin, 10110 Northwest Freeway, Houston, TX 77092. Within thirty (30) days after the City deposits said monthly statement in a United States Postal Service receptacle., the Department shall pay the City the amount set forth in the statement. Payments shall be made payable to the City of Baytown and shall be mailed to City of Baytown, P.O. Box 424, Baytown, TX 77522, Attention: Finance Department. Any payment not timely paid as indicated herein,shall accrue interest at the rate of 1% per month. IV. TERM The term of this Agreement shall commence on the date of execution hereof and shall continue until either the City or the Department terminates this Agreement. Either party hereto may 2 terminate this Agreement without cause by giving of ten(10)days written notice to the other party of such party's intent to terminate this Agreement. In the event of such termination,the Department shall pay the City, in accordance with Section III of this Agreement for the gasoline purchased up to the date of termination. V. ADDITIONAL COMPENSATION TO CITY As additional compensation to the City,the Department hereby assigns to the City any rebate or refunds of gasoline taxes the Department may receive or be entitled to in regard to the gasoline purchased by the Department. VI. INDEMNIFICATION The Department agrees to and shall indemnify, hold harmless and defend, the City, its officers, agents and employees, from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorneys'fees for injury to or death of any person, or for damage to any property, arising out of or in connection with the services provided by the City under this contract, where such injuries, death or damages are caused by the joint negligence of the City and any other person or entity. It is the expressed intention of the parties hereto, both the Department and the City, that the indemnity provided for in this paragraph is an indemnity by the Department to indemnify,protect and defend the City from the consequences of the City's own negligence,where that negligence is a concurring cause of the injury, death or damage. Furthermore, the indemnity provided for in this paragraph shall have no application to any claim, loss, damage, cause of action, suit and liability where the injury,death or damage results from the sole negligence of City unmixed with the fault of any other person or entity. VII. ENTIRE AGREEMENT This instrument contains the entire Agreement between the parties relating to the rights hereunder granted and the obligations herein assumed. Any oral representation or modifications concerning this Agreement shall be of no force or effect excepting a subsequent modification in writing signed by all parties hereto. VIII. COMPLIANCE WITH ALL APPLICABLE LAWS The Department shall comply with all rules, regulations, and laws of the United States of America,the State of Texas,and all laws,regulations,and ordinances of the City of Baytown as they now exist or may hereafter be enacted or amended. 3 XIV. SALE OF INTEREST The Department may not sell or assign all or part interest in activities to another party or parties without the express written approval of the City Manager of such sale or assignment, nor shall Department assign any monies due or to become due to it hereunder without the previous consent of the City Manager. The City may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of the City. XV. NOTICES All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: DEPARTMENT Texas Department of Public Safety Attn: Captain Robert E. Martin 10110 Northwest Freeway Houston, TX 77092 Fax No. 957-6197 CITY City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Fax No. 420-6586 XVI. NON-WAIVER Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 4 XVIL GOVERNING LAW This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City,regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XVIII. SEVERABILITY All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. XIX. CONDITIONS BEYOND CONTROL Neither the City nor the Department shall be required to perform any term, condition or covenant of this Agreement so long as performance is delayed or prevented by force majeure,which shall mean acts of God,drought,floods,material or labor restrictions by any governmental authority, and any other cause not reasonably within the control of either party in which,by the exercise of due diligence,the City or the Department is unable to prevent or overcome. XX. VENUE This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City,regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. XXI. NO RIGHT TO ARBITRATION Notwithstanding anything to the contrary contained in this Agreement, the City and the Department hereby agree that no claim or dispute between the City and the Department arising out of or relating to this Agreement shall be decided by any arbitration proceeding including,without limitation any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any 5 applicable State arbitration statute, including but not limited to the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, the Department consents to be joined in the arbitration proceeding if the Department's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. XXII. NO THIRD PARTY BENEFICIARIES This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Department and the City only. XXIII. AUTHORITY The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple copies,each of which shall be�emed to be an original,but all of which shall constitute but one and the same Agreement on the/f day of Ay if- 1995,the date of execution by the City Manager of the City of Baytown. TEXAS DEPARTMENT OF PUBLIC SAFETY TOM HAAS, Chief of Finance CITY OF BAYTOWN BOBBY OUNTREE, City Manager 6 ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: I ACIO RAMIREZ, SR., y Attorney STATE OF TEXAS § COUNTY OF HARRIS § Before me on this day personally appeared Tom Baas, in his capacity as Chief of Finance of the Texas Department of Public Safety, on behalf of such corporation, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this 17thday of August 1995. -`, LORNA J.SANDLIN a c•1 Notary Public,State of Texas o Pub�/vdfor the State of Texas My Commission Expires OF��:' AUG.27,1997 b:kih8/gasoline 7