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Ordinance No. 8,515990211. -4 ORDINANCE NO. 8515 ® AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE 1997 LICENSE AGREEMENT WITH THE UNITED STATES DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT ADMINISTRATION, HOUSTON FIELD DIVISION, FOR IMPROVEMENTS TO AND USE OF THE CITY OF BAYTOWN FIREARMS TRAINING RANGE; 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 to execute and City Clerk to attest to the First Amendment to the 1997 License Agreement with the United States Department of Justice, Drug Enforcement Administration, Houston Field Division, for improvements to and use of the City of Baytown firearms training range. 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 11th day of February, 1999. x( e PETE C. ALFARO, Mayor ATTEST: �I EILEEN P. HALL, City Clerk APPROVED AS TO FORM: tGNACIO RAMIREZ, SR. ty Attorney ® c:klh134\ Council) Ordinances\ DEAGunWangeLicenseAgreementOrdinance ® FIRST AMENDMENT TOTHE 1997 LICENSE AGREEMENT Ll STATE OF TEXAS § COUNTY OF HARRIS § This First Amendment ( "Amendment ") to that certain "License Agreement" between the City of Baytown, a municipal corporation located in Harris and Chambers Counties, Texas ( "City ") and the United States Department of Justice, Drug Enforcement Administration, Houston Field Division ( "DEA ") dated the I" day of July, 1997, for the use of the firearms training range, is made by and between the same parties on the date hereinafter last specified. WITNESSETH: Whereas, City owns and maintains a firearms training range, located at 3407 McLean Road, Baytown, Texas (the "Range "); and Whereas, DEA has expended considerable effort to maintain and enhance the Range; and Whereas, DEA has utilized and desires to continue to utilize the Range for its firearms and training and qualification activities; and Whereas City is willing to permit said use of the Range subject to certain terms and conditions. NOW, THEREFORE, in consideration of the foregoing and in consideration of the mutual promises herein contained, the parties agree hereto as follows: LICENSE City hereby gives permission, revocable and terminable as hereinafter provided to DEA to enter the Range for the purpose described herein. 2. USE OF RANGE DEA shall be permitted to use the Range for DEA firearms and training and qualification activities as well as to conduct maintenance and enhancement activities. DEA will be offered to select range time on an annual basis, second to the yearly range time of City. Throughout the term of this Agreement, DEA shall comply with prudent safety procedures, and DEA assumes responsibility for the safety of DEA personnel and property when using the Range. Furthermore, DEA agrees to exercise caution and conduct all actions at or on the Range in a way that will assure the safety of persons and property. First Amendment to the 1997 Ucense A_recment, Pagc l PXHIBIT A ® 3. FEE The initial fee for the license granted herein shall be ONE HUNDRED THOUSAND AND N01100 DOLLARS ($100,000.00), which shall be paid to City on or before December 31, 1999. Thereafter, no fixed fee shall be established; however, if funds are allocated for the use of the Range in accordance with this Agreement by the DEA beginning in the 1998/99 fiscal year, DEA covenants and agrees to tender all such funds to City for the express purposes of (i) making enhancements or repairs to the Range to meet'and/or maintain minimum DEA training standards as further specified in Article 4 and (ii) and paying operating costs associated with DEA's usage of the Range, as apportioned by the City. The monies so allocated for each fiscal year shall be paid to City in four equal installments with the first payable on or before January 3151, the second payable on or before April 30th, the third payable on or before July 31St, and the fourth payable on or before October 31St of each year upon DEA's receipt of a valid invoice from the City. Fees not timely paid shall accrue interest at a rate set forth in the Prompt Payment Act. 4. ENHANCEMENTS & REPAIRS A list of the enhancements and repairs and the priority of the same to which the fee specified in Article 3 will be initially applied is listed in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes. The parties understand and agree that the priority of the enhancements and repairs may not hereinafter be changed, altered or amended without the written consent of both parties hereto. Likewise, all subsequent enhancements and repairs shall be agreed upon by the parties in writing, but shall be subject to the terms and conditions of this Agreement. The City shall not be obligated to make any enhancements and /or repairs to the Range unless and until the fees received in accordance with Article 3 hereof have been received and accumulated. Both parties shall approve in writing all plans and specifications, which City caused to be prepared, concerning any enhancement to the Range to which fees prescribed in article 3 are applied. The repairs and enhancements made in accordance with this Agreement shall at all times be the property of City. and DEA hereby waives any and all rights, claims, or title to the same. 5. TERM This Agreement will automatically renew each year without further action of the parties if funds are allocated by DEA for the use of the Range in accordance with this Agreement and City is notified in writing of such allocation and the amount thereof. Each term of this Agreement shall commence on October I" and end on September 30'h, beginning on October 1, 1997, and continuing annually for a period of not less than five (5) years and no more than thirty (30) years, ® or until the Agreement is terminated. First Amendment to the 1997 License Agreement, Page 2 ® 6. ACCESS City shall provide DEA access to the Range for the uses consistent with those described in Article 2 herein. DEA Primary Firearms Instructor (PFI) will be allowed access to the Range at all times authorized by the Chief of Police of City or his designee (hereinafter collectively referred to as the "City's POC "). DEA access will be limited to DEA range- related matters only. At all times during DEA's use of the= Range, certified DEA Firearms Instructors will assume functional control over the Range. A DEA designated PH will be the point of contact for all range matters between DEA and City's POC. City's rules governing the usage of the Range will be strictly adhered to and enforced by all DEA Firearms Instructors. 7. MAINTENANCE Except as otherwise provided in this Agreement, the cost of any maintenance and operation of the Range shall be at the sole expense of City. Subject to the availability of funds, DEA will continue to provide funding for enhancements to and maintenance of the Range throughout the term of this Agreement in order bring the Range into compliance or maintain the Range in compliance with the DEA firearms policy and procedures, as amended. Any and all Range enhancements must be authorized by the City Manager of the City or his designee. 8. REPAIRS Any damages beyond normal wear and tear resulting from the DEA's use of the Range shall be billed to DEA by the City. Any disputes arising under this Article shall be resolved by the DEA's Contracting Officer as provided for in the Federal Acquisition Regulations, Part 333.202 (Contract Dispute Act of 1978), if applicable. Any claims by the City shall be submitted to the DEA's Contracting Officer within 90 days of accrual of claim. Repair expenses for which DEA is liable shall be billed to DEA by City and shall be paid within thirty 30 days of DEA's receipt of an invoice for the same. Repair expenses not timely paid shall accrue interest at a rate established by the Secretary of the Treasury, and published in the Federal Register, which is in effect at the time the DEA accrues the obligation to pay a late payment interest penalty 9. INSURANCE City and DEA shall self - insure for the actions of their respective employees. DEA, an agency of the Untied States Government, is self- insured and shall be considered so in this Agreement. t0- COMPLIANCE ® Should DEA fail or neglect to comply with any of the terms of this Agreement or to comply with any reasonable requirements of City after thirty (30) days' written notice and demand, this Agreement shall be subject to termination by City. Upon such termination, DEA shall immediately remove any equipment owned by DEA from the Range and surrender all rights and First Amendment to the 1997 License Aercement, Page 3 privileges under this Agreement. All property that DEA does not remove within ten (10) days of the termination of this Agreement shall be deemed abandoned and shall, at City's option, become property of City after the expiration of such ten (10) day period. 11. TERMINATION In the event City or DEA determines to terminate use of the Range, this Agreement may be terminated by giving one (1) year written notice to the other party of its termination. Prior to termination, DEA shall remove any equipment owned by DEA from the Range and surrender all rights and privileges under this Agreement. All property that DEA does not remove prior to the termination of this Agreement shall be deemed abandoned and shall, at City's option, become property of City. 12. CONTINGENCY. In the event no funds are available for the use of the Range in accordance with this Agreement at any time throughout the term of this Agreement beginning in the 1998/99 fiscal year, the City shall have the right and option without any liability to terminate this Agreement upon giving thirty (30) days' notice of such termination to DEA and the reason therefor. 13. MODIFICATION This Agreement constitutes the entire agreement of the parties and may not be modified except by a written instrument, signed by both parties. Any oral representations or modifications concerning this instrument are of no force or effect excepting a subsequent modification in writing signed by all the parties hereto. 14. NOTICES All notices hereunder must be in writing and shall be deemed validly given when actually received or, if earlier, on the third day following deposit in a United States Postal Service post office or receptacle with proper postage affixed sent by certified mail return receipt requested addressed as indicated on the signature page (or any other address that the party to be notified may have properly designated to the sender by like notice.) 15. POINT OF CONTACT City and DEA shall each designate a single point of contact (POC) who shall have the responsibility and authority to coordinate the provisions of this Agreement. The respective ® POCs at the initiation of this Agreement arc as follows: First Amendment to the 1997 License Agreement, Page 4 n DEA's POC: Ronald E. Provencher Assistant Special Agent in Charge DEA Houston Field Division 1433 West Loop South, Suite 600 Houston, TX 77027 Phone: (713) 693 -3000 Fax: (713) 693 -3065 16. NON- WAIVER City's POC: Charles Shaffer, Chief of Police 3200 N. Main Street Baytown, TX 77522 Phone: (281) 420 -6642 Fax: (281) 427 -5037 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 or to exercise any right or remedy occurring as a result of any future default or failure of performance. 17. APPLICABLE LAWS This Agreement is subject to and shall be construed in accordance with the laws of the State of Texas, the laws of the federal government of the United States of America. This Agreement is performable in Harris County, Texas. 18. AMBIGUITIES In the event of any ambiguity in any of the terms of this contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. 19. CONSTRUCTION This Amendment constitutes the entire agreement of the parties with respect to the use of the Range, and the terms and conditions stated in this Amendment supersede all prior agreements between the parties relating to such usage. 20. SEVERABILITY All parties agree that should any provision of this contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this contract, which shall continue in full force and effect. 21. HEADINGS First Amendment to the 1997 License Agreement, Page 5 • The article headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. 22. GENDER AND NUMBER Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless context requires otherwise. 23. AUTHORITY TO ENTER CONTRACT. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations and/or business entities. 24. AGREEMENT READ The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. 25. MULTIPLE ORIGINALS It is understood and agreed that this Agreement may be executed in a number of identical counterparts each of which shall be deemed an original for all purposes. IN WITNESS WHEREOF, the parties hereto have set their hands and cause this Agreement to be executed 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 date and year first above written. First Amendment to the 1997 License Agrecment, Page 6 CITY: City of Baytown P.O. Box 424 Baytown, Texas 77522 By: PETE C. ALFARO, Mayor 0 Attest: EILEEN P. HALL, City Clerk Approved as to form: •+• Y DEA United States Department of Justice Drug Enforcement Administration Houston Field Division 143; West Loop South, Suite 600 Houston, TX 77027 Ernest L. Howard DEA Special Agent in Charge Houston Field Division Attest: Randy Cj4eedles DEA Administrative Officer Houston Field Division d:klh 137kConLractsl RangcLiccnsci \grecmcntlLiecnscASrecmcnt4 BPl)Itangc,020399.Cican First Amendment to the 1997 License Agreement, Pale 7