Ordinance No. 10,106ORDINANCE NO. 10,106
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO
ATTEST TO A FIRE PROTECTION AGREEMENT WITH CHAMBERS
COUNTY IMPROVEMENT DISTRICT NO. l; AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
r�
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 the City
Manager to execute and the City Clerk to attest to a Fire Protection Agreement with Chambers County
Improvement District No. 1. Said agreement is attached hereto as Exhibit "A" and incorporated herein
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 28`h day of July, 2005.
1
CALVIN MUNDINGER, Mayor
ATTEST:
G RY . SMITI-1, City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., C' Attorney
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• AGREEMENT FOR EMERGENCY PROTECTION SERVICES
STATE OF TEXAS 5
COUNTY OF HARRIS S
THIS AGREEMENT is made, entered into and effective as of the 1" day of August,
2005, by and between the CITY OF BAYTOWN, Texas, a municipal corporation located in
Harris County and Chambers County, Texas (the "CITY "), and Chambers County Improvement
DistrictNo. 1, (the "DISTRICT "), having a territory and facilities in Chambers County, Texas;
and
WHEREAS, the CITY will provide fire fighting support and backup protection to the
DISTRICT's territory and facilities therein, 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, August 1, 2005; and
WHEREAS the DISTRICT's territory includes real and personal property used in the
logistics, warehousing, distribution, manufacturing, refining and chemical manufacturing,
research, support, and office facilities used in direct support of these operations situated either
contiguous thereto or separated by roads, which territory is more specifically identified in
Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes
(hereinafter referred to as the "Territory"); and
WHEREAS, the DISTRICT desires the CITY to provide fire fighting and rescue services
to the Territory in support of which the DISTRICT shall make certain payments to the CITY to
enable the CITY's Fire Department to improve fire fighting and rescue response capabilities; and
NOW THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, the CITY and the DISTRICT agree as follows:
The CITY will respond, at the request of the DISTRICT or landowners and tenants in the
DISTRICT, with emergency services for fire, chemical and medical emergencies at the
Territory which escalate above the incipient or internal response capability of the
personnel of the landowners and tenants within the Territory, which services will be
provided with reasonable promptness to the extent the equipment, facilities, personnel,
training and other resources available to the CITY will, from time to time, permit.
2. The CITY represents that Exhibit "B," attached hereto is, to the best of its knowledge and
belief, a complete listing of the CITY'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 within the Territory as described herein. Upon the written request of the
DISTRICT as described hereinbelow, the CITY shall amend Exhibit "B" annually to
is 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
=9 A
• purchases and acquisitions with funds from the Dedicated Fund defined in Paragraph 4.
The CITY shall prepare this amended Exhibit "B" 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 the DISTRICT a copy of 'each such amended Exhibit "B" within thirty (30)
days after the DISTRICT makes a written request therefor.
3. The CITY's Rules and Regulations for Baytown Fire and Rescue Services and
Operations Manual ( "Standard Operating Procedures ") governing the 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 DISTRICT to the CITY.
The Chief of the CITY's Fire Department or the senior Fire Officer on the scene, i.e., the
Incident Commander, shall, with the assistance and cooperation of plant/facility officials
within the Territory and analysis of the stand -by resources required, determine the level
of additional CITY, Channel Industries Mutual Aid ( "CIMA ") and/or other outside
response required.
4. The DISTRICT shall make annual payments to the CITY during the term or terms of this
Agreement, as provided in this Paragraph. All funds represented by such payments shall
be set aside and maintained by the CITY in a segregated, dedicated fund (hereinafter
referred to as the "Dedicated Fund ") dedicated solely for the improvement of fire fighting
and/or hazardous materials response capabilities as determined by the Chief of the Fire
Department after consultation with the DISTRICT ( "Equipment and Training ") for the
use solely by the CITY in performing its fire, chemical and medical emergency response
services, including those services which will be performed under the terms of this
Agreement.
For the services required to be rendered herein, the DISTRICT shall pay no less than
ONE HUNDRED FIFTY THOUSAND AND N01100 DOLLARS ($150,000.00),
excluding reimbursable expenses required herein, in each year of the term of this
Agreement, adjusted as provided hereinafter, for so long as this Agreement shall remain
in effect, subject to (1) the reopener as provided for herein and (ii) the funds being used in
a manner consistent with this Agreement. The amount of each such payment after the
first Contract Year, as defined in Paragraph 7 hereof of this Agreement shall be increased
in an amount equal to the percentage increase in the Consumers Price Index of 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 payment is to be made over the CFI for the Base
Year). The CPI shall mean and refer to the final regional consumers price index reported.
Either the CITY or the DISTRICT may reopen this Agreement for Contract Years 3, 5, 7,
9, if applicable, for the sole purpose of negotiation of service costs due to additional
development in the Territory or other changes that affect service delivery. Any party
reopening this Agreement shall notify the other part in writing. Such notice shall include
a detailed list of the modifications or changes desired and supporting documentation and
must be received by the other party at least 120 days prior to July 31 of the applicable
• Contract Year. Upon receipt of the notice, the negotiations shall commence. It is
expressly understood and agreed that nothing herein shall be construed to allow any other
provision of this Agreement to be reopened. This section only allows the parties to
reopen the compensation provision of this Agreement for the years stated hereinabove. If
the Agreement is reopened pursuant to this section, it is expressly understood and agreed
that until a new agreement concerning the opened section is reached the opened section
as specified in the Agreement will be in full force and effect and will be binding upon the
parties hereto. If the parties do not reach agreement on the revised service cost by July
31, either party may terminate this Agreement upon giving the other one hundred eighty
(180) days written notice of its desire to terminate this agreement.
The payment for each Contract Year will be made in four (4) equal installments on the
first (1st) day of August, November, February and May of such Contract Year. Failure of
the DISTRICT to make payments in a timely manner will be considered a material breach
of this Agreement and will result in interest in the amount of 1% per month being
accessed on all delinquent amounts. Additionally for such a material breach, the CITY,
in its sole discretion, shall have the right, but not the obligation, (1) to suspend services
until the DISTRICT makes payment in full or (ii) to terminate this Agreement. In the
event of suspension or termination, the CITY shall provide the DISTRICT written notice
of the same.
5. The DISTRICT agrees that in receiving assistance from the CITY or other CIMA
members, the DISTRICT shall replace material used, and shall repair or replace
equipment lost or damaged in the control of a fire or emergency situation within the
Territory, in cash based on current replacement cost or in kind, in the same manner as
specified in Section 2.6 of the CIMA Bylaws adopted August 18, 2004, unless otherwise
specified herein, which bylaws are by this reference incorporated herein by this reference
for all intents and purposes. Reimbursement of damaged or lost equipment is required
without regard to the cause or causes thereof (including damage or loss caused by
preexisting conditions) or the negligence of any party or parties, including, but not
limited to the owner, the operator, the CITY and any CIMA member, as well as their
respective officers, agents or employees, whether such negligence be sole, joint or
concurrent active or passive. Material used includes, but is not limited, to, fire fighting
foam, hazardous materials containment or absorbent materials and chemical protective
clothing and equipment. Reimbursement of monies expended is required without regard
to the cause or causes thereof or the negligence of any party or parties, whether such
negligence be sole, joint,,or concurrent, active or passive.
The obligations in this Paragraph 5 shall be in addition to and shall remain in effect
notwithstanding termination of the payments described in Paragraph 4 or the termination
of this Agreement. The reimbursements required pursuant to this Paragraph 5 shall be
due within thirty (30) days after the CITY renders the services resulting in the
DISTRICT's obligation to replace material used, and/or to repair or replace equipment
lost or damaged in the control of a fire or emergency situation within the Territory.
Failure of the DISTRICT to make payments in a timely manner will be considered a
material breach of this Agreement and will result in interest in the amount of 1% per
month being accessed on all delinquent amounts. Additionally, for such a material
® breach, the CITY, in its sole discretion, shall have the right, but not the obligation, (1) to
suspend services until the DISTRICT makes payment in full or (ii) to terminate this
® Agreement. In the event of suspension or termination, the CITY shall provide the
DISTRICT written notice of the same.
6. The DISTRICT understands and agrees that should the CITY seek assistance from CIMA
for fire - fighting, rescue, Hazmat and/or medical manpower and facilities or any other
assistance in an emergency situation within the Territory, the DISTRICTshall sign a
CIMA Non - member Emergency Incident Assistance and Reimbursement and
Indemnification Agreement (the "CIMA Agreement ") and shall abide by the terms
thereof. Should the DISTRICT fail for any reason to sign the CIMA Agreement, the
DISTRICT shall still be responsible for all expenses the CITY incurs in complying with
Section 2.6 of the CIMA Bylaws, passed on August 18, 2004. The DISTRICT
understands and agrees that all CIMA reimbursement costs incurred by the CITY, for
whatever, reason shall be borne by the DISTRICT. Should any of the provisions of this
Agreement conflict with the terms of the CIMA Agreement, irrespective of whether the
DISTRICT signs such agreement, those provisions providing the most protection to the
CITY, as determined by the CITY, shall control.
ALL PROVISIONS CONCERNING REIMBURSEMENT OBLIGATIONS UNDER
THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR EXPIRATION
HEREOF.
7. The term of this Agreement shall commence on the effective date of this Agreement and
shall continue for an initial term of six (6) years from such date ( "Initial Term "), unless
terminated pursuant to Paragraph 4 or 5 hereinabove. Following the Initial Term, this
Agreement may be renewed for an additional four -year term upon agreement of the
parties. Each year during the Initial Term and any successive term of this Agreement,
commencing on August 1 of each year and ending July 31 of the following year, shall be
deemed a "Contract Year" hereunder.
8. The parties understand and agree that the suspension or termination of this Agreement for
any reason has no effect on any Industrial District Agreement between the CITY and the
any entity lying within the Territory. All such agreements shall remain in full force and
effect pursuant to its term and conditions thereof.
9. The parties understand and agree that 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:
(a) the CITY and/or the DISTRICT are unsuccessful in preventing an annexation or
incorporation by another municipality or
(b) the CITY annexes a portion of the Territory,
the CITY or the DISTRICT may, in its sole discretion, terminate this Agreement only for
that portion of the Territory affected by the annexation or incorporation at any time after
the effective date of such annexation or incorporation. The DISTRICT may terminate
® this Agreement on one hundred eighty (180) days notice if it determines, in good faith,
® that the CITY is not providing an adequate level of fire, chemical and medical emergency
services to the DISTRICT.
10. In the event the terms and conditions of this Agreement are rendered ineffective or that
their effect is 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.
11. THE DISTRICT AGREES TO INDEMNIFY AND DEFEND THE CITY IN
ACCORDANCE WITH THE INDEMNIFICATION PROVISIONS CONTAINED IN
THE CIMA AGREEMENT, DEFINED IN PARAGRAPH 6, SAID AGREEMENT
BEING ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT "C."
12. The DISTRICT shall procure and maintain at its sole cost and expense for the term(s) of
the Agreement insurance against claims for injuries to person or damages to property
which may arise from or in connection with the performance of the work hereunder by
the CITY, its agents, representatives, volunteers, employees or subcontractors.
12.1 The DISTRICT's insurance coverage shall be primary insurance with respect to
the CITY, its officials, employees and agents. Any insurance or self - insurance
maintained by the CITY, its officials, employees or agents shall be considered in
excess of the DISTRICT's insurance and shall not contribute to it.
12.2 The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
a. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
b. Business Automobile Policy
■ Combined Single Limits: $500,000
or
BI per person $100,000
BI per accident $300,000
PD per accident $100,000.
■ Coverage for "Any Auto"
12.3 The following is applicable to all policies of insurance required in Paragraph 12.2:
a. Insurance carrier for all liability policies must have an A.M. Best Rating
of B +:VIII or better.
•
0 b. Only insurance carriers licensed and admitted to do business in the State
of Texas will be accepted.
C. Liability policies must be on occurrence form.
d. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the CITY.
e. The CITY, its officers, agents and employees are to be added as
Additional Insureds to all liability policies. If the DISTRICT chooses to
Self - Insure, the General Liability and Automobile Liability Insurance
requirements of Paragraph 12.2, then the DISTRICT's extension of
Additional Insured Status to the CITY shall be governed by the applicable
Indemnity Agreement in the By -Laws of CIMA Section 2.6.
f. Upon request and without cost to the CITY, certified copies of all
insurance polices and/or certificates of insurance shall be furnished to the
CITY.
13. All notices required to be given hereunder shall be given in writing by overnight, or
facsimile transmission, or by 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 days after the date of mailing
thereof to the following addresses:
DISTRICT
Chambers County Improvement District No. 1
Attn: James D. Bonham
Smith, Murdaugh, Little & Bonham, L.L.P.
1100 Louisiana Street, Suite 400
Houston, TX 77002 -5211
Fax No. (713) 652 -6515
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax No. (281) 420 -6586
14. It is agreed and understood that the DISTRICT is responsible for the safety of its
personnel and persons performing emergency services for fire, chemical and medical
emergencies at the Territory.
•
15. The DISTRICT shall not sell, assign, or transfer any of its rights or obligations under this
Agreement in whole or in part without the prior written consent of CITY, which consent
shall not be unreasonably withheld.
16. Notwithstanding anything to the contrary contained in this Agreement, the CITY and the
DISTRICT hereby agree that no claim or dispute between the CITY and the DISTRICT
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 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 DISTRICT consents to be
joined in the arbitration proceeding if the DISTRICT's presence is required or requested
by the CITY of complete relief to be recorded in the arbitration proceeding.
17. In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author
the same.
18. This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, 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.
19. This Agreement shall bind and benefit the CITY and the DISTRICT and shall not bestow
any rights upon any third parties.
20. 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.
21. This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
22. 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 have executed this Agreement as of the date first
set forth above 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.
v
•
ATTEST:
Signature
Printed Name
Title
ATTEST:
GARY W. SMITH
City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR.
City Attorney
CHAMBERS COUNTY
IMPROVEMENT DISTRICT NO. I
Authorized Agent's Signature
Authorized Agent's Printed Name
Authorized Agent's Title
CITY OF BAYTOWN
GARY JACKSON
City Manager
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Fire Station Five
7210 Bayway Dr.
281 - 420 -5335
1 Lieutenant
1 Equipment Operator
2 Firefighters
E -5 - 2003 Pierce
1,500 GPM
750 Gallons Water and 25 Gallon Foam Tank
1000' 5" Hose
900' 2 ' /Z" Hose
850' 1 3/4' Hose
100' 1 '/2" Hose
PPV Fan
AED
(4) Portable Hand Held Radios
Gas Detector
(5) airpacs
Ladders
(1) 24' Extension ladder
(1) 12' Roof ladder
(1) 10' Attic ladder
(1) A -frame ladder
Radios
(4) 800's
(1) 154
(1) CIMA
Reserve 5 - 1986 Grumman
1,000 GPM
600 Gallons Water
1000' 5" Hose
1000' 3" hose
200'2 '/2' Hose
450' 1 3/4" Hose
PPV Fan
(4) airpacs
Ladders
(1) 24' Extension ladder
(1) 14' Roof ladder
® (1) 12' Roof ladder
(1) 10' Attic ladder
1 is C
Radios
(1) 800's
(1) 154
(1) CIMA
C]
® CIMA NON -MEMBER
•
EMERGENCY INCIDENT ASSISTANCE AND
REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
THIS EMERGENCY INCIDENT ASSISTANCE AND REIMBURSEMENT AND
INDEMNIFICATION AGREEMENT ( "Agreement ") is made as of the _ day of ,20 by and
between Channel Industries Mutual Aid Organization ("LIMA" or "CIMA Corporation "), a Texas non-
profit corporation, and , a CIMA non - member (hereinafter "COMPANY ").
RECITALS
WHEREAS, COMPANY is currently involved in response activities associated with
in ; and
WHEREAS, CIMA has equipment and/or personnel that are available to help COMPANY respond to the
emergency situation; the term "CIMA" or "CIMA Corporation" as used in this Agreement means Channel Industries
Mutual Aid Organization, its successors, assigns, agents, employees, officers, directors and all CIMA Members,
including their agents, employees, officers and directors; and
WHEREAS, COMPANY desires to contract with CIMA for the actual provision of assistance with
response to emergency fire protection and other public safety matters on the terms and conditions set forth herein;
and
WHEREAS, COMPANY agrees that the local fire department or other appropriate governmental entity is
responsible for directing fire fighting or emergency activities at the COMPANY receiving assistance.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, CIMA and COMPANY hereby agree as follows:
ARTICLE I
CONDITIONS AND LIMITATIONS OF SERVICE
1.1 The Services provided under this Agreement shall consist of first alarm assignment only with a minimum of a
four -hour callout.
1.2 COMPANY shall pay CIMA for the Services provided in accordance with the following rate schedule:
Hours 0 through 8: $15,000 per hour plus consumables
Hours 9 through 16: $25,000 per hour plus consumables
Hours 16 through 24: $35,000 per hour plus consumables
1.3 CIMA normally will not provide Services for more than 24 hours. In the event that COMPANY requests for the
Services to continue for more than 24 hours, CIMA may continue or discontinue the Services at its sole option and
within its sole discretion. Should CIMA agree to continue the Services for more than 24 hours, such Services shall
be provided at a rate of $50,000 per hour plus consumables.
IT 0
ARTICLE H
REIMBURSEMENT - MATERIAL & EQUIPMENT
2.1 REIMBURSEMENT. COMPANY receiving assistance from CIMA Corporation or CIMA Members,
shall replace material used, and repair or replace any equipment damaged or lost, in the control of a fire or
emergency situation within the receiving COMPANY'S facilities, in kind or in cash at current prices.
REIMBURSEMENT OF DAMAGED OR LOST EQUIPMENT IS REQUIRED WITHOUT REGARD TO
THE CAUSE OR CAUSES THEREOF NCLUDING DAMAGE OR LOSS CAUSED BY PREEXISTING
CONDITIONS OR THE NEGLIGENCE OF ANY PARTY OR PARTIES INCLUDING THE OWNER OR
OPERATOR OF THE EQUIPMENT, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT ACTIVE OR PASSIVE. THIS REIMBURSEMENT OBLIGATION IS INAPPLICABLE
TO THE EXTENT THAT MATERIAL OR EQUIPMENT IS DAMAGED OR LOST BY REASON OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2.2 Reimbursement Definition. Damage to and loss of equipment refers to damage and loss as a
result of the emergency situation rather than from the wear and tear expected in the normal
operation of the equipment. The owner of damaged or lost equipment is entitled to repair of the
equipment, or replacement of the equipment if repair is not feasible for economic or other
reasons. The cost of replacement in that circumstance will be the current cost, in the Greater
Houston Metropolitan Area, of new equipment with specifications similar to that of the
equipment to be replaced. The current cost of new, similar equipment is to be determined as of
the date of the damage or loss that necessitates the replacement of the equipment.
2.3 SURVIVABILITY. ALL PROVISIONS CONCERNING REIMBURSEMENT
OBLIGATIONS UNDER THIS AGREEMENT SHALL SURVIVE THE TERMINATION
DATE.
ARTICLE III
INDEMNIFICATION
3.1 INDEMNIFICATION. COMPANY RECEIVING ASSISTANCE FROM CIMA
CORPORATION OR CIMA MEMBERS SHALL INDEMNIFY DEFEND AND HOLD
HARMLESS (A) CIMA; AND (B) EACH AND EVERY CIMA MEMBER AND THE
AGENTS DIRECTORS OFFICERS AND EMPLOYEES THEREOF PROVIDING
ASSISTANCE (BOTH (A) AND (B) HEREINAFTER "INDEMNIFIED. PARTIES "), FROM
AND AGAINST ANY AND ALL DEMANDS CAUSES OF ACTION DAMAGES
INJURIES, FINES (INCLUDING PENALTIES OR OTHER CHARGES OR COSTS
IMPOSED BY ANY FEDERAL, STATE OR LOCAL AUTHORITY), LIABILITY,
ATTORNEY FEES LITIGATION COSTS AND EXPENSES AND LOSSES OF ANY KIND
OR CHARACTER FOR SICKNESS OR INJURY TO OR DEATH OF ANY PERSON
(INCLUDING ANY EMPLOYEE) AND FOR LOSS OR DAMAGE TO ANY PROPERTY
OWNED OR OPERATED BY LIMA CORPORATION A CIMA MEMBER OR ANY
OTHER PERSON OR ENTITY (INCLUDING ANY EQUIPMENT AND ANY NATURAL
RESOURCES) RESULTING DIRECTLY OR INDIRECTLY FROM THE RECEIVING
COMPANY'S USE OF EQUIPMENT OR EMPLOYEES OR FROM THE RESPONSE
ACTIONS UNDERTAKEN BY CIMA CORPORATION OR CIMA MEMBERS.
THIS INDEMNIFICATION IS APPLICABLE TO ALL EVENTS OCCURRING: (1) ON THE
ACTUAL PROPERTY OF COMPANY RECEIVING ASSISTANCE OR-(2) ON PROPERTY
UNDER THE CONTROL OF THE COMPANY RECEIVING ASSISTANCE (SUCH AS
LEASED WAREHOUSE SPACE) DEMANDS CAUSES OF ACTION, DAMAGES,
INJURIES FINES LIABILITY LOSSES OF ANY KIND OR CHARACTER FOR SICKNESS
OR DEATH OF ANY PERSON (INCLUDING ANY EMPLOYEE), AND FOR LOSS OR
DAMAGE TO ANY PROPERTY OCCURRING OFF OF THE ACTUAL PROPERTY OF
COMPANY RECEIVING ASSISTANCE OR OFF THE PROPERTY UNDER THE
CONTROL OF THE COMPANY RECEIVING ASSISTANCE WILL BE GOVERNED BY
COMMON LAW.
3.2 GROSS NEGLIGENCE WILLFUL MISCONDUCT CRIMINAL LAW. COMPANY
AGREES THAT THE INDEMNITIES PROVIDED FOR IN THIS AGREEMENT SHALL BE EFFECTIVE
REGARDLESS OF THE NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES
WHETHER SUCH N'EGLIGEN'CE BE SOLE JOINT OR CONCURRENT ACTIVE OR PASSIVE AND
REGARDLESS OF WHETHER LIABILITY WITHOUT FAULT IS IMPOSED ON THE INDEMNIFIED
PARTIES EXCEPT'TO THE EXTENT THAT LIABILITY ARISES BY REASON OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTIES. IN ADDITION THE
COMPANY SHALL NOT BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CLAIMS OR
PENALTIES ARISING OUT OF OR RESULTING FROM THE INTENTIONAL VIOLATION OF ANY
CRIMINAL LAW.
3.3 Insurance. COMPANY also covenants and agrees that the indemnity and hold harmless provisions are not
limited, restricted, or in any way affected by the amount of insurance carried by COMPANY.
3.4 SURVIVABILITY. ALL INDEMNITIES MADE BY COMPANY UNDER THIS AGREEMENT
SHALL SURVIVE THE TERMINATION DATE.
3.5 DEFINITIONS. "DEFEND" MEANS TO: (I) PROVIDE LEGAL COUNSEL AND DEFENSE TO
THE CIMA CORPORATION OR AT THE CIMA CORPORATION'S OPTION TO REIMBURSE CIMA
CORPORATION FOR ALL REASONABLE ATTORNEYS FEES GENERATED BY COUNSEL
SELECTED BY CIMA CORPORATION; AND (2) TO PAY ALL OTHER COSTS OF DEFENSE
INCLUDING ALL APPEAL AND SUPERSEDEAS BONDS.
ARTICLE IV
MISCELLANEOUS
4.1 Designated Emergencies - Participation Voluntary. There is no obligation on any CIMA Member to
contribute equipment or manpower to any particular emergency. Participation in any particular emergency is wholly
voluntary based on the needs and availability of a CIMA Member to respond. Thus, there is no liability on CIMA
Corporation or any CIMA Member for failing to respond to an emergency situation under this Agreement.
4.2 _Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Texas.
4.3 _Attorneys Fees. In the event that any legal action is instituted between the parties pertaining to the
interpretation or enforcement of the terms of this Agreement, the prevailing party shall be entitled to recover a
reasonable allowance for attorneys fees and court expenses, to be fixed and determined by the court in which such
action is filed.
4.4 Notices. All notices, demands or communications relating to this Agreement that CIMA Corporation or any
CIMA Member may wish to send to COMPANY shall be in writing.
4.5 Severability. If any provision of this Agreement or portion thereof should be declared invalid for any reason,
the invalid provisions or portion thereof shall be deemed omitted and the remaining terms shall nevertheless be
carried into effect.
4.6 Waiver. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or condition.
® 4.7 Numi)er and Gender. Whenever required by the context, the singular number shall include the plural, and
the masculine or neutral gender shall include all genders.
4.8 Entire A eement. This Agreement contains the entire understanding between the parties and supersedes
any prior written or oral agreements between them respecting the subject matter contained herein. No subsequent
modification of this Agreement shall be effective unless it is in writing and signed by all parties.
4.9 A_ssisrnment- Bindin Effect. COMPANY may not assign its rights and obligations under this
Agreement. Subject to and without affecting the prohibitions herein with respect to assignment, this Agreement shall
be binding on the parties and their respective successors and assigns.
4.10 Non- members: Nothing in this Agreement shall entitle any person or entity not a party to this Agreement to
institute any claims, causes of action, remedy, or right of any kind arising out of the operations conducted pursuant
to this Agreement.
4.11 Term. Unless earlier terminated by COMPANY or CIMA Corporation, this Agreement shall remain in force
for so long as COMPANY is engaged in response activities relating to the Incident. NOTWITHSTANDING
SECTION 3.11 OF THIS ARTICLE THE REIMBURSEMENT PROVISIONS A INDEMNITIES
CONTAINED IN THIS AGREEMENT SHALL REMAIN IN EFFECT BEYOND THE TERMINATION OF
RESPONSE ACTIVITIES UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, COMPANY and CIMA Corporation executed this Agreement by their duly
authorized representatives on the date indicated below.
Dated: 11 Channel Industries Mutual Aid Organization ( "CIMA ")
By [signature]
Name [printed]
Title
[Note: Any individual CIMA Member, or CIMA Specialist, or CIMA officer may
sign above on behalf of CIMA].
Dated: l� [COMPANY]
By [signature]
Name [printed]
Company
Title
WITNESSED BY: [Municipality, Governmental Agency or Entity]
By [signature]
Name [printed]
Title
Agency
Dated
AGREEMENT FOR EMERGENCY PROTECTION SERVICES
STATE OF TEXAS §
§
COUNTY OF HARRIS §
THIS AGREEMENT is made, entered into and effective as of the 1st day of August,
2005, by and between the CITY OF BAYTOWN, Texas, a municipal corporation located in
Harris County and Chambers County, Texas (the "CITY"), and Chambers County Improvement
District No. 1, (the "DISTRICT"), having a territory and facilities in Chambers County, Texas;
and
WHEREAS, the CITY will provide fire fighting support and backup protection to the
DISTRICT's territory and facilities therein, 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, August 1, 2005; and
WHEREAS the DISTRICT's territory includes real and personal property used in the
logistics, warehousing, distribution,. manufacturing, refining and chemical manufacturing,
research, support, and office facilities used in direct support of these operations situated either
contiguous thereto or separated by roads, which territory is more specifically identified in
Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes
(hereinafter referred to as the "Territory"); and
WHEREAS, the DISTRICT desires the CITY to provide fire fighting and rescue services
to the Territory in support of which the DISTRICT shall make certain payments to the CITY to
enable the CITY's Fire Department to improve fire fighting and rescue response capabilities; and
NOW THEREFORE, in consideration of the promises and of the mutual covenants and
agreements herein contained, the CITY and the DISTRICT agree as follows:
1. The CITY will respond, at the request of the DISTRICT or landowners and tenants in the
DISTRICT, with emergency services for fire, chemical and medical emergencies at the
Territory which escalate above the incipient or internal response capability of the
personnel of the landowners and tenants within the Territory, which services will be
provided with reasonable promptness to the extent the equipment, facilities, personnel,
training and other resources available to the CITY will, from time to time,permit.
2. The CITY represents that Exhibit`B," attached hereto is, to the best of its knowledge and
belief, a complete listing of the CITY'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 within the Territory as described herein. Upon the written request of the
DISTRICT as described hereinbelow, the CITY shall amend Exhibit `B" 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
1
purchases and acquisitions with funds from the Dedicated Fund defined in Paragraph 4.
The CITY shall prepare this amended Exhibit "B" 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 the DISTRICT a copy of each such amended Exhibit `B" within thirty (30)
days after the DISTRICT makes a written request therefor.
3. The CITY's Rules and Regulations for Baytown Fire and Rescue Services and
Operations Manual ("Standard Operating Procedures") governing the 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 DISTRICT to the CITY.
The Chief of the CITY's Fire Department or the senior Fire Officer on the scene, i.e., the
Incident Commander, shall, with the assistance and cooperation of plant/facility officials
within the Territory and analysis of the stand-by resources required, determine the level
of additional CITY, Channel Industries Mutual Aid ("CIMA") and/or other outside
response required.
4. The DISTRICT shall make annual payments to the CITY during the term or terms of this
Agreement, as provided in this Paragraph. All funds represented by such payments shall
be set aside and maintained by the CITY in a segregated, dedicated fund (hereinafter
referred to as the "Dedicated Fund") dedicated solely for the improvement of fire fighting
and/or hazardous materials response capabilities as determined by the Chief of the Fire
Department after consultation with the DISTRICT ("Equipment and Training") for the
use solely by the CITY in performing its fire, chemical and medical emergency response
services, including those services which will be performed under the terms of this
Agreement.
For the services required to be rendered herein, the DISTRICT shall pay no less than
ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00),
excluding reimbursable expenses required herein, in each year of the term of this
Agreement, adjusted as provided hereinafter, for so long as this Agreement shall remain
in effect, subject to (i) the reopener as provided for herein and (ii) the funds being used in
a manner consistent with this Agreement. The amount of each such payment after the
first Contract Year, as defined in Paragraph 7 hereof of this Agreement shall be increased
in an amount equal to the percentage increase in the Consumers Price Index of 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 payment 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.
Either the CITY or the DISTRICT may reopen this Agreement for Contract Years 3, 5, 7,
9, if applicable, for the sole purpose of negotiation of service costs due to additional
development in the Territory or other changes that affect service delivery. Any party
reopening this Agreement shall notify the other part in writing. Such notice shall include
a detailed list of the modifications or changes desired and supporting documentation and
must be received by the other party at least 120 days prior to July 31 of the applicable
Contract Year. Upon receipt of the notice, the negotiations shall commence. It is
expressly understood and agreed that nothing herein shall be construed to allow any other
provision of this Agreement to be reopened. This section only allows the parties to
reopen the compensation provision of this Agreement for the years stated hereinabove. If
the Agreement is reopened pursuant to this section, it is expressly understood and agreed
that until a new agreement concerning the opened section is reached the opened section
as specified in the Agreement will be in full force and effect and will be binding upon the
parties hereto. If the parties do not reach agreement on the revised service cost by July
31, either party may terminate this Agreement upon giving the other one hundred eighty
(180) days written notice of its desire to terminate this agreement.
The payment for each Contract Year will be made in four (4) equal installments on the
first(1st) day of August,November, February and May of such Contract Year. Failure of
the DISTRICT to make payments in a timely manner will be considered a material breach
of this Agreement and will result in interest in the amount of 1% per month being
accessed on all delinquent amounts. Additionally for such a material breach, the CITY,
in its sole discretion, shall have the right, but not the obligation, (i) to suspend services
until the DISTRICT makes payment in full or (ii) to terminate this Agreement. In the
event of suspension or termination, the CITY shall provide the DISTRICT written notice
of the same.
5. The DISTRICT agrees that in receiving assistance from the CITY or other CIMA
members, the DISTRICT shall replace material used, and shall repair or replace
equipment lost or damaged in the control of a fire or emergency situation within the
Territory, in cash based on current replacement cost or in kind, in the same manner as
specified in Section 2.6 of the CIMA Bylaws adopted August 18, 2004, unless otherwise
specified herein, which bylaws are by this reference incorporated herein by this reference
for all intents and purposes. Reimbursement of damaged or lost equipment is required
without regard to the cause or causes thereof (including damage or loss caused by
preexisting conditions) or the negligence of any party or parties, including, but not
limited to the owner, the operator, the CITY and any CIMA member, as well as their
respective officers, agents or employees, whether such negligence be sole, joint or
concurrent active or passive. Material used includes, but is not limited, to, fire fighting
foam, hazardous materials containment or absorbent materials and chemical protective
clothing and equipment. Reimbursement of monies expended is required without regard
to the cause or causes thereof or the negligence of any party or parties, whether such
negligence be sole,joint, or concurrent, active or passive.
The obligations in this Paragraph 5 shall be in addition to and shall remain in effect
notwithstanding termination of the payments described in Paragraph 4 or the termination
of this Agreement. The reimbursements required pursuant to this Paragraph 5 shall be
due within thirty (30) days after the CITY renders the services resulting in the
DISTRICT's obligation to replace material used, and/or to repair or replace equipment
lost or damaged in the control of a fire or emergency situation within the Territory.
Failure of the DISTRICT to make payments in a timely manner will be considered a
material breach of this Agreement and will result in interest in the amount of 1% per
month being accessed on all delinquent amounts. Additionally, for such a material
breach, the CITY, in its sole discretion, shall have the right, but not the obligation, (i) to
suspend services until the DISTRICT makes payment in full or (ii) to terminate this
Agreement. In the event of suspension or termination, the CITY shall provide the
DISTRICT written notice of the same.
6. The DISTRICT understands and agrees that should the CITY seek assistance from CIMA
for fire-fighting, rescue, Hazmat and/or medical manpower and facilities or any other
assistance in an emergency situation within the Territory, the DISTRICT shall sign a
CIMA Non-member Emergency Incident Assistance and Reimbursement and
Indemnification Agreement (the "CIMA Agreement") and shall abide by the terms
thereof Should the DISTRICT fail for any reason to sign the CIMA Agreement, the
DISTRICT shall still be responsible for all expenses the CITY incurs in complying with
Section 2.6 of the CIMA Bylaws, passed on August 18, 2004. The DISTRICT
understands and agrees that all CIMA reimbursement costs incurred by the CITY, for
whatever, reason shall be borne by the DISTRICT. Should any of the provisions of this
Agreement conflict with the terms of the CIMA Agreement, irrespective of whether the
DISTRICT signs such agreement, those provisions providing the most protection to the
CITY, as determined by the CITY, shall control.
ALL PROVISIONS CONCERNING REIMBURSEMENT OBLIGATIONS UNDER
THIS AGREEMENT SHALL SURVIVE THE TERMINATION OR EXPIRATION
HEREOF.
7. The term of this Agreement shall commence on the effective date of this Agreement and
shall continue for an initial term of six (6) years from such date ("Initial Term"), unless
terminated pursuant to Paragraph 4 or 5 hereinabove. Following the Initial Term, this
Agreement may be renewed for an additional four-year term upon agreement of the
parties. Each year during the Initial Term and any successive term of this Agreement,
commencing on August 1 of each year and ending July 31 of the following year, shall be
deemed a"Contract Year"hereunder.
8. The parties understand and agree that the suspension or termination of this Agreement for
any reason has no effect on any Industrial District Agreement between the CITY and the
any entity lying within the Territory. All such agreements shall remain in full force and
effect pursuant to its term and conditions thereof
9. The parties understand and agree that 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:
(a) the CITY and/or the DISTRICT are unsuccessful in preventing an annexation or
incorporation by another municipality or
(b) the CITY annexes a portion of the Territory,
the CITY or the DISTRICT may, in its sole discretion, terminate this Agreement only for
that portion of the Territory affected by the annexation or incorporation at any time after
the effective date of such annexation or incorporation. The DISTRICT may terminate
this Agreement on one hundred eighty (180) days notice if it determines, in good faith,
that the CITY is not providing an adequate level of fire, chemical and medical emergency
services to the DISTRICT.
10. In the event the terms and conditions of this Agreement are rendered ineffective or that
their effect is 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.
11. THE DISTRICT AGREES TO INDEMNIFY AND DEFEND THE CITY IN
ACCORDANCE WITH THE INDEMNIFICATION PROVISIONS CONTAINED IN
THE CIMA AGREEMENT, DEFINED IN PARAGRAPH 6, SAID AGREEMENT
BEING ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT"C."
12. The DISTRICT shall procure and maintain at its sole cost and expense for the term(s) of
the Agreement insurance against claims for injuries to person or damages to property
which may arise from or in connection with the performance of the work hereunder by •
the CITY, its agents, representatives, volunteers, employees or subcontractors.
12.1 The DISTRICT's insurance coverage shall be primary insurance with respect to
the CITY, its officials, employees and agents. Any insurance or self-insurance
maintained by the CITY, its officials, employees or agents shall be considered in
excess of the DISTRICT's insurance and shall not contribute to it.
12.2 The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
a. Commercial General Liability
• General Aggregate: $1,000,000
• Per Occurrence: $500,000
• Coverage shall be at least as broad as ISO CG 00 01 10 93
• No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
b. Business Automobile Policy
• Combined Single Limits: $500,000
or
BI per person$100,000
BI per accident $300,000
PD per accident $100,000.
• Coverage for"Any Auto"
12.3 The following is applicable to all policies of insurance required in Paragraph 12.2:
a. Insurance carrier for all liability policies must have an A.M. Best Rating
of B+:VIII or better.
b. Only insurance carriers licensed and admitted to do business in the State
of Texas will be accepted.
c. Liability policies must be on occurrence form.
d. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt
requested,has been given to the CITY.
e. The CITY, its officers, agents and employees are to be added as
Additional Insureds to all liability policies. If the DISTRICT chooses to
Self-Insure, the General Liability and Automobile Liability Insurance
requirements of Paragraph 12.2, then the DISTRICT's extension of
Additional Insured Status to the CITY shall be governed by the applicable
Indemnity Agreement in the By-Laws of CIMA Section 2.6.
f. Upon request and without cost to the CITY, certified copies of all
insurance polices and/or certificates of insurance shall be furnished to the
CITY.
13. All notices required to be given hereunder shall be given in writing by overnight, or
facsimile transmission, or by 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 days after the date of mailing
thereof to the following addresses:
DISTRICT
Chambers County Improvement District No. 1
Attn: James D. Bonham
Smith, Murdaugh, Little &Bonham, L.L.P.
1100 Louisiana Street, Suite 400
Houston, TX 77002-5211
Fax No. (713) 652-6515
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax No. (281) 420-6586
14. It is agreed and understood that the DISTRICT is responsible for the safety of its
personnel and persons performing emergency services for fire, chemical and medical
emergencies at the Territory.
15. The DISTRICT shall not sell, assign, or transfer any of its rights or obligations under this
Agreement in whole or in part without the prior written consent of CITY, which consent
shall not be unreasonably withheld.
16. Notwithstanding anything to the contrary contained in this Agreement, the CITY and the
DISTRICT hereby agree that no claim or dispute between the CITY and the DISTRICT
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 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 DISTRICT consents to be
joined in the arbitration proceeding if the DISTRICT's presence is required or requested
by the CITY of complete relief to be recorded in the arbitration proceeding.
17. In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author
the same.
18. This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, 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.
19. This Agreement shall bind and benefit the CITY and the DISTRICT and shall not bestow
any rights upon any third parties.
20. 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.
21. This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
22. 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 have executed this Agreement as of the date first
set forth above 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.
CHAMBERS COUNTY
IMPROVE TRICT NO. 1
Auth i d Agent's Signature
Authorized Agent's Printed Name
,1c
Authorized Agent's Title
A ST:
jr—
o4) SIe-Zn
Printed Name
Title
CITY OF BAYTOWN
•
GAR JAC S N
City Mana er/
ATTEST: •
-
G Y W. SMITH
City Clerk
APPROVED AS TO FORM:
NACIO RAMIREZ, S
City Attorney
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Fire Station Five
7210 Bayway Dr.
281-420-5335
1 Lieutenant
1 Equipment Operator
2 Firefighters
E-5 -2003 Pierce
1,500 GPM
750 Gallons Water and 25 Gallon Foam Tank
1000' 5" Hose
900' 2 '/2" Hose
850' 1 3/4" Hose
100' 1 '/Z' Hose
PPV Fan
AED
(4) Portable Hand Held Radios
Gas Detector
(5) airpacs
Ladders
(1) 24' Extension ladder
(1) 12' Roof ladder
(1) 10' Attic ladder
(1) A-frame ladder
Radios
(4) 800's
(1) 154
(1) CIMA
Reserve 5 - 1986 Grumman
1,000 GPM
600 Gallons Water
1000' 5" Hose
1000' 3" hose
200' 2 '/2" Hose
450' 1 %" Hose
PPV Fan
(4) airpacs
Ladders
(1) 24' Extension ladder
(1) 14' Roof ladder
(1) 12' Roof ladder
(1) 10' Attic ladder
EXHIBIT B
Radios
(1) 800's
(1) 154
(1) CIMA
CIMA NON-MEMBER
EMERGENCY INCIDENT ASSISTANCE AND
REIMBURSEMENT AND INDEMNIFICATION AGREEMENT
THIS EMERGENCY INCIDENT ASSISTANCE AND REIMBURSEMENT AND
INDEMNIFICATION AGREEMENT ("Agreement") is made as of the_day of ,20 , by and
between Channel Industries Mutual Aid Organization ("CIMA" or "CIMA Corporation"), a Texas non-
profit corporation,and ,a CIMA non-member(hereinafter"COMPANY").
RECITALS
WHEREAS, COMPANY is currently involved in response activities associated with
in ; and
WHEREAS, CIMA has equipment and/or personnel that are available to help COMPANY respond to the
emergency situation;the term"CIMA"or"LIMA Corporation"as used in this Agreement means Channel Industries
Mutual Aid Organization, its successors, assigns, agents, employees, officers, directors and all CIMA Members,
including their agents,employees,officers and directors;and
WHEREAS, COMPANY desires to contract with CIMA for the actual provision of assistance with
response to emergency fire protection and other public safety matters on the terms and conditions set forth herein;
and
WHEREAS, COMPANY agrees that the local fire department or other appropriate governmental entity is
responsible for directing fire fighting or emergency activities at the COMPANY receiving assistance.
AGREEMENTS
NOW,THEREFORE,in consideration of the foregoing,and for other good and valuable consideration,the receipt
and sufficiency of which is hereby acknowledged,CIMA and COMPANY hereby agree as follows:
ARTICLE I
CONDITIONS AND LIMITATIONS OF SERVICE
1.1 The Services provided under this Agreement shall consist of first alarm assignment only with a minimum of a
four-hour callout.
1.2 COMPANY shall pay CIMA for the Services provided in accordance with the following rate schedule:
Hours 0 through 8: $15,000 per hour plus consumables
Hours 9 through 16: $25,000 per hour plus consumables
Hours 16 through 24: $35,000 per hour plus consumables
1.3 CIMA normally will not provide Services for more than 24 hours.In the event that COMPANY requests for the
Services to continue for more than 24 hours, CIMA may continue or discontinue the Services at its sole option and
within its sole discretion. Should CIMA agree to continue the Services for more than 24 hours, such Services shall
be provided at a rate of$50,000 per hour plus consumables.
V
ARTICLE II
REIMBURSEMENT-MATERIAL & EQUIPMENT
2.1 REIMBURSEMENT. COMPANY receiving assistance from CIMA Corporation or CIMA Members,
shall replace material used, and repair or replace any equipment damaged or lost, in the control of a fire or
emergency situation within the receiving COMPANY'S facilities, in kind or in cash at current prices.
REIMBURSEMENT OF DAMAGED OR LOST EQUIPMENT IS REQUIRED WITHOUT REGARD TO
THE CAUSE OR CAUSES THEREOF (INCLUDING DAMAGE OR LOSS CAUSED BY PREEXISTING
CONDITIONS) OR THE NEGLIGENCE OF ANY PARTY OR PARTIES INCLUDING THE OWNER OR
OPERATOR OF THE EQUIPMENT, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT, ACTIVE OR PASSIVE. THIS REIMBURSEMENT OBLIGATION IS INAPPLICABLE
TO THE EXTENT THAT MATERIAL OR EQUIPMENT IS DAMAGED OR LOST BY REASON OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2.2 Reimbursement Definition. Damage to and loss of equipment refers to damage and loss as a
result of the emergency situation rather than from the wear and tear expected in the normal
operation of the equipment. The owner of damaged or lost equipment is entitled to repair of the
equipment, or replacement of the equipment if repair is not feasible for economic or other
reasons. The cost of replacement in that circumstance will be the current cost, in the Greater
Houston Metropolitan Area, of new equipment with specifications similar to that of the
equipment to be replaced. The current cost of new, similar equipment is to be determined as of
the date of the damage or loss that necessitates the replacement of the equipment.
2.3 SURVIVABILITY. ALL PROVISIONS CONCERNING REIMBURSEMENT
OBLIGATIONS UNDER THIS AGREEMENT SHALL SURVIVE THE TERMINATION
DATE.
ARTICLE III
INDEMNIFICATION
3.1 INDEMNIFICATION. COMPANY RECEIVING ASSISTANCE FROM CIMA
CORPORATION OR CIMA MEMBERS, SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS (A) CIMA; AND (B) EACH AND EVERY CIMA MEMBER AND THE
AGENTS, DIRECTORS, OFFICERS AND EMPLOYEES THEREOF PROVIDING
ASSISTANCE (BOTH (A) AND (B) HEREINAFTER"INDEMNIFIED. PARTIES"), FROM
AND AGAINST ANY AND ALL DEMANDS, CAUSES OF ACTION, DAMAGES,
INJURIES, FINES (INCLUDING PENALTIES OR OTHER CHARGES OR COSTS
IMPOSED BY ANY FEDERAL, STATE OR LOCAL AUTHORITY), LIABILITY,
ATTORNEY FEES, LITIGATION COSTS AND EXPENSES, AND LOSSES OF ANY KIND
OR CHARACTER FOR SICKNESS OR INJURY TO OR DEATH OF ANY PERSON
(INCLUDING ANY EMPLOYEE), AND FOR LOSS OR DAMAGE TO ANY PROPERTY
OWNED OR OPERATED BY CIMA CORPORATION, A CIMA MEMBER, OR ANY
OTHER PERSON OR ENTITY (INCLUDING ANY EQUIPMENT AND ANY NATURAL
RESOURCES) RESULTING DIRECTLY OR INDIRECTLY FROM THE RECEIVING
COMPANY'S USE OF EQUIPMENT OR EMPLOYEES OR FROM THE RESPONSE
ACTIONS UNDERTAKEN BY CIMA CORPORATION OR CIMA MEMBERS.
THIS INDEMNIFICATION IS APPLICABLE TO ALL EVENTS OCCURRING: (1) ON THE
ACTUAL PROPERTY OF COMPANY RECEIVING ASSISTANCE OR(2) ON PROPERTY
UNDER THE CONTROL OF THE COMPANY RECEIVING ASSISTANCE (SUCH AS
LEASED WAREHOUSE SPACE). DEMANDS, CAUSES OF ACTION, DAMAGES,
INJURIES, FINES, LIABILITY, LOSSES OF ANY KIND OR CHARACTER FOR SICKNESS
OR DEATH OF ANY PERSON(INCLUDING ANY EMPLOYEE),AND FOR LOSS OR
DAMAGE TO ANY PROPERTY OCCURRING OFF OF THE ACTUAL PROPERTY OF
COMPANY RECEIVING ASSISTANCE OR OFF THE PROPERTY UNDER THE
CONTROL OF THE COMPANY RECEIVING ASSISTANCE, WILL BE GOVERNED BY
COMMON LAW.
3.2 GROSS NEGLIGENCE,WILLFUL MISCONDUCT, CRIMINAL LAW. COMPANY
AGREES THAT THE INDEMNITIES PROVIDED FOR IN THIS AGREEMENT SHALL BE EFFECTIVE
REGARDLESS OF THE NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES
WHETHER SUCH NEGLIGENCE BE SOLE,JOINT OR CONCURRENT,ACTIVE OR PASSIVE,AND
REGARDLESS OF WHETHER LIABILITY WITHOUT FAULT IS IMPOSED ON THE INDEMNIFIED
PARTIES,EXCEPT'TO THE EXTENT THAT LIABILITY ARISES BY REASON OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTIES.IN ADDITION,THE
COMPANY SHALL NOT BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CLAIMS OR
PENALTIES ARISING OUT OF OR RESULTING FROM THE INTENTIONAL VIOLATION OF ANY
CRIMINAL LAW.
3.3 Insurance. COMPANY also covenants and agrees that the indemnity and hold harmless provisions are not
limited,restricted,or in any way affected by the amount of insurance carried by COMPANY.
3.4 SURVIVABILITY. ALL INDEMNITIES MADE BY COMPANY UNDER THIS AGREEMENT
SHALL SURVIVE THE TERMINATION DATE.
3.5 DEFINITIONS. "DEFEND"MEANS TO: (1)PROVIDE LEGAL COUNSEL AND DEFENSE TO
THE CIMA CORPORATION OR AT THE CIMA CORPORATION'S OPTION,TO REIMBURSE CIMA
CORPORATION FOR ALL REASONABLE ATTORNEYS FEES GENERATED BY COUNSEL
SELECTED BY CIMA CORPORATION;AND(2)TO PAY ALL OTHER COSTS OF DEFENSE
INCLUDING ALL APPEAL AND SUPERSEDEAS BONDS.
ARTICLE IV
MISCELLANEOUS
4.1 Designated Emergencies - Participation Voluntary. There is no obligation on any CIMA Member to
contribute equipment or manpower to any particular emergency.Participation in any particular emergency is wholly
voluntary based on the needs and availability of a CIMA Member to respond.Thus,there is no liability on CIMA
Corporation or any CIMA Member for failing to respond to an emergency situation under this Agreement.
4.2 Governing Law. This Agreement shall be governed by,and construed in accordance with,the laws of the
State of Texas.
4.3 Attorneys Fees. In the event that any legal action is instituted between the parties pertaining to the
interpretation or enforcement of the terms of this Agreement,the prevailing party shall be entitled to recover a
reasonable allowance for attorneys fees and court expenses,to be fixed and determined by the court in which such
action is filed.
4.4 Notices. All notices,demands or communications relating to this Agreement that CIMA Corporation or any
CIMA Member may wish to send to COMPANY shall be in writing.
4.5 Severability. If any provision of this Agreement or portion thereof should be declared invalid for any reason,
the invalid provisions or portion thereof shall be deemed omitted and the remaining terms shall nevertheless be
carried into effect.
4.6 Waiver. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or condition.
4.7 Number and Gender. Whenever required by the context,the singular number shall include the plural,and
the masculine or neutral gender shall include all genders.
4.8 Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes
any prior written or oral agreements between them respecting the subject matter contained herein.No subsequent
modification of this Agreement shall be effective unless it is in writing and signed by all parties.
4.9 Assignment; Binding Effect. COMPANY may not assign its rights and obligations under this
Agreement. Subject to and without affecting the prohibitions herein with respect to assignment,this Agreement shall
be binding on the parties and their respective successors and assigns.
4.10 Non-members: Nothing in this Agreement shall entitle any person or entity not a party to this Agreement to
institute any claims,causes of action,remedy,or right of any kind arising out of the operations conducted pursuant
to this Agreement.
4.11 Term. Unless earlier terminated by COMPANY or CIMA Corporation,this Agreement shall remain in force
for so long as COMPANY is engaged in response activities relating to the Incident. NOTWITHSTANDING
SECTION 3.11 OF THIS ARTICLE, THE REIMBURSEMENT PROVISIONS AND INDEMNITIES
CONTAINED IN THIS AGREEMENT SHALL REMAIN IN EFFECT BEYOND THE TERMINATION OF
RESPONSE ACTIVITIES UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, COMPANY and CIMA Corporation executed this Agreement by their duly
authorized representatives on the date indicated below.
Dated: Channel Industries Mutual Aid Organization("CIMA")
By[signature]
Name[printed]
Title
[Note:Any individual CIMA Member,or CIMA Specialist,or CIMA officer may
sign above on behalf of CIMA].
Dated: [COMPANY]
By[signature]
Name[printed]
Company
Title
WITNESSED BY: [Municipality,Governmental Agency or Entity]
By[signature]
Name [printed]
Title
Agency
Dated
EXHIBIT "A"
The district includes all of the territory contained within the following described area:
BEING approximately 13,900 acres of land situated in Chambers County, Texas, and being out
of and a part of the Christian Smith League, Abstract No. 22, the Thomas Shepherd Survey,
Abstract No. 229, the Chambers County School Land Survey, Abstract No. 321, the Solomon
Barrow Survey, Abstract No. 3, the John Steele Survey, Abstract No. 227, the J. L. Hill Survey,
Abstract No. 106, the J. K. Allen Survey, Abstract No. 31, the J. C. Fisher Survey, Abstract No.
31, the W. D. Smith League, Abstract No. 23 and the John Ijams Survey, Abstract No. 15. This
tract of land is more particularly described by metes and bounds as follows, to-wit:
BEGINNING at the Northeast corner of Tract No. 199-B, in the East line of the Chambers
County School Land Survey, Abstract No. 321 and in the West line of the Solomon Barrow
Survey, Abstract No. 3 and in the South right of way line of the Houston Lighting and Power
Company Discharge Canal right of way.
THENCE in a Southerly direction with the East line of this tract, the East line of the Chambers
County School Land Survey and the West line of the Solomon Barrow Survey to the Northwest
corner of Tract No. 100-A.
THENCE in an Easterly and Southerly direction with the North and East lines of Tract No.
100-A to a point at the intersection of the North line of Tract No. 100-A with the East right of
way line of F. M. Highway No. 2354.
THENCE in a Southerly direction with the East right of way line of F. M. Highway No. 2354 to
the intersection of the South right of way line of Fisher Road (Rice Farm Road) with the East
right of way line of F. M. Highway No. 2354.
THENCE in a Westerly direction with the South right of way line of Fisher Road to the most
Northern Northeast corner of Tract No. 89.
THENCE in a Southerly and Easterly direction with the East and North lines of Tract No. 89 to
the Northwest corner of a 4.00 acre tract of land conveyed to Chambers County.
THENCE in a Southerly and Easterly direction with the West and South lines of the Chambers
County 4.00 acre tract to the intersection of the projection of the South line of the Chambers
County 4.00 acre tract with the East right of way line of F. M. Highway No. 2354.
THENCE in a Southerly direction with the East right of way line of F. M. Highway No. 2354 to
a point at the intersection of the East right of way line of F. M. Highway No. 2354 with the
South line, as extended, of a 0.9796 acre tract of land conveyed to United States Steel
Corporation by G. E. Troxell, Jr., by deed recorded in Volume 283 at Page 454 of the Deed
Records of Chambers County, Texas.
THENCE in a Westerly direction with the South line of Tract No. 89M said Troxell tract to the
Southwest corner of said Troxell tract in the East line of Tract No. 89M.
857946_3.DOC A-1
THENCE in a Southerly direction with the East line of Tract No. 89M to the Southeast corner of
Tract No. 89M in the North line of Tract No. 125.
THENCE in an Easterly direction with the North line of Tract No. 125 to the East right of way
line of F. M. Highway No. 2354.
THENCE in a Southerly direction with the East right of way line of Highway No. 2354 to the
South line of Tract No. 125.
THENCE in a Westerly direction with the South line of Tract No. 125 to the Southwest corner of
Tract No. 125 in the East line of Tract No. 119.
THENCE in a Southerly direction with the East line of Tracts No. 119, 118, 117, 117A, 116 to
the Southeast corner of Tract No. 116 in the North line of Tract No. 114.
THENCE in an Easterly direction with the North line of Tract No. 114 to the East right of way
line of F. M. Highway No. 2354.
THENCE in a Southerly direction with the East right of way line of F. M. Highway No. 2354 to
South line of Tract No. 4-D as extended.
THENCE in a Westerly direction with the South line of Tract No. 4-D to the most Northern
Northeast corner of Tract No. 10-B.
THENCE in a Southerly direction with the East and Northerly lines of Tract No, 10-B to a point
at the intersection of the North line of Tract No. 10-B, as extended, with the East right of way
line of F. M. Highway No. 2354.
THENCE in a Southwesterly direction with the East and South right of way line of F. M.
Highway No. 2354 to the intersection with the East right of way line of Live Oak Drive.
THENCE in a Southwesterly direction with the East and South right of way line of Live Oak
Drive to the intersection of the extended East line of the Nerco Oil and Gas Production Company
2.00 acre tract with the South right of way line of Live Oak Drive.
THENCE in a Northerly direction with the East line of the Nerco Oil and Gas 2.00 acre tract to
the Northeast corner of said 2.00 acre tract.
THENCE in a Westerly direction with the North lines of the Nerco 2.00 acre tract, the Exxon
2.00 acre tract and the Exxon 5.00 acre tract of land to the Northwest corner of the Exxon 5.00
acre tract of land.
THENCE in a Southerly direction with the West line of the Exxon 5.00 acre tract to the
Southwest corner of the Exxon 5.00 acre tract and a corner of the Jones and Laughlin Tract
No. 3.
857946_3.DOC A-2
THENCE in a Westerly direction with the South and West lines of the Jones and Laughlin Tract
No. 3 and the shore line of Galveston Bay and San Jacinto Bay and the West line of Tract No. 43
to the Southeast or East shore line of Cedar Bayou.
THENCE in a Northwesterly direction with the shore line of Cedar Bayou and the West line of
Tracts No. 43, Atlantic Pipeline 14.3427 acre and 43A to the Southwest corner of the Maurice
Hirsch so-called 40.28 acre tract and Northwest corner of Tract No. 43A.
THENCE in an Easterly direction with the South line of the Hirsch tract and the North line of
Tract No. 43A to a point in the East right of way line of Tri-City Beach Road at the extension of
the North line of Tract No. 43A.
THENCE in a Southerly direction with the East line of Tri-City Beach Road to the West right of
way line of F. M. Highway No. 1405.
THENCE in a Northerly direction with the West right of way line of F. M. Highway No. 1405 to
the Northeast corner of Tract No. 37.
THENCE in a Westerly direction with the North line of Tract No. 37 to the centerline of Cedar
Bayou, being the County Line between Chambers and Harris Counties.
THENCE in a Northerly direction with the centerline of Cedar Bayou and said County Line to a
point at the intersection of the centerline of Cedar Bayou with the South line of the Warrior and
Gulf 15.00 acne tract.
THENCE in an Easterly, Northerly, Westerly and Southerly direction with the lines of the
Warrior Gulf 15 acre tract and the Hoesch Tubular Products Company 25 acre tract lines to a
point at the intersection of the West line of Hoesch 25 acre tract, extended, with the centerline of
Cedar Bayou and said County Line.
THENCE in a Northerly direction with the centerline of Cedar Bayou to the intersection of the
centerline of Cedar Bayou with the extension of the South line of Johnnie and Rosemary
Jennings property.
THENCE in an Easterly, Northerly and Westerly direction around the Jennings property to the
intersection of the North line of the Jennings property extended with the centerline of Cedar
Bayou and said County Line.
THENCE in a Northerly direction with the centerline of Cedar Bayou to the intersection of the
centerline of Cedar Bayou with the South line, extended, of a Tract conveyed to McDonugh
Company.
THENCE in an Easterly direction with the South line of the McDonugh Company tract to a point
for the Southeast corner of the McDonugh Company tract in the West right of way line of West
Bay Road(Old F. M. Highway No. 1405).
THENCE in a Northerly direction with the West right of way line of West Bay Road to a point at
the intersection of the North line, extended, of Tract No. 35-X.
857946_3.DOC A-3
THENCE in an Easterly direction with the North line of Tract No. 35-X to the Northeast corner
of Tract No. 35-X and in the West right of way line of Houston Lighting and Power Company
330 foot right of way and in the West line of Tract No. 5-D.
THENCE in a Northerly direction with the West line of Tract No. 5-D and the West line of said
330 foot right of way to a point in the North right of way line of West Bay Road.
THENCE in an Easterly direction with the North right of way line of West Bay Road to a point
for a corner of Tract No. 5-D being in the East right of way line of the old right of way for West
Bay Road.
THENCE in an Easterly direction with the North line of Tract No. 5-D to the intersection with
the South right of way line of the Houston Lighting and Power Company Discharge Canal.
THENCE in an Easterly direction with the South right of way line of the Houston Lighting and
Power Company Discharge Canal to the Northwest corner of a 21.2152 acre tract of land
conveyed to Houston Lighting and Power Company.
THENCE in a Southerly direction with the West line of said 21.2152 acre tract to the Southwest
corner of said 21.2152 acre tract of land.
THENCE in an Easterly direction with the South line of said 21.2152 acre tract to the Southeast
corner of said 21.2152 acre tract of land in the West line of the Coastal Water Authority 5.115
acre tract of land.
THENCE in a Southerly, Easterly and Northerly direction around said Coastal Water Authority
5.115 acre tract to a point for the Northeast corner of said 5.115 acre tract in the South right of
way line of the Houston Lighting and Power Company Discharge Canal right of way.
THENCE in an Easterly direction with the South line of the Houston Lighting and Power
Company Discharge Canal right of way to the PLACE OF BEGINNING, containing within said
boundaries approximately 13,900 acres of land.
857946_3.DOC A-4
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4 , 1
purchases and acquisitions with funds from the Dedicated Fund defined in Paragraph 4.
The CITY shall prepare this amended Exhibit"B" 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 the DISTRICT a copy of each such amended Exhibit "B" within thirty (30)
days after the DISTRICT makes a written request therefor.
3. The CITY's Rules and Regulations for Baytown Fire and Rescue Services and
Operations Manual ("Standard Operating Procedures") governing the 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 DISTRICT to the CITY.
The Chief of the CITY's Fire Department or the senior Fire Officer on the scent, i.e., the
Incident Commander, shall, with the assistance and cooperation of plant/facility officials
within the Territory and analysis of the stand-by resources required, determine the level
of additional CITY, Channel Industries Mutual Aid ("CIMA") and/or other outside
response required.
4. The DISTRICT shall make annual payments to the CITY during the term or teens of this
Agreement, as provided in this Paragraph. All funds represented by such payments shall
be set aside and maintained by the CITY in a segregated, dedicated fund (hereinafter
referred to as the "Dedicated Fund") dedicated solely for the improvement of fire fighting
and/or hazardous materials response capabilities as determined by the Chief of the Fire
Department after consultation with the DISTRICT ("Equipment and Training") for the
use solely by the CITY in performing its fire, chemical and medical emergency response
services, including those services which will be performed under the terms of this
Agreement.
For the services required to be rendered herein, the DISTRICT shall pay no less than
ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($150,000.00).
excluding reimbursable expenses required herein, in each year of the term of this
Agreement, adjusted as provided hereinafter, for so long as this Agreement shall remain
in effect, subject to (i)the reopener as provided for herein and (ii) the funds being used in
a manner consistent with this Agreement. The amount of each such payment after the
first Contract Year, as defined in Paragraph 7 hereof of this Agreement shall be increased
in an amount equal to the percentage increase in the Consumers Price Index of 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 payment 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.
Either the CITY or the DISTRICT may reopen this Agreement for Contract Years 3, 5, 7,
9, if applicable, for the sole purpose of negotiation of service costs due to additional
development in the Territory or other changes that affect service delivery. Any party
reopening this Agreement shall notify the other part in writing. Such notice shall include
a detailed list of the modifications or changes desired and supporting documentation and
must be received by the other party at least 120 days prior to July 31 of the applicable
Contract Year. Upon receipt of the notice, the negotiations shall commence. It is
expressly understood and agreed that nothing herein shall be construed to allow any other
1
I ,
provision of this Agreement to be reopened. This section only allows the parties to
reopen the compensation provision of this Agreement for the years stated hereinabove. If
the Agreement is reopened pursuant to this section, it is-expressly understood and agreed
that until a new agreement concerning the opened section is reached the opened section
as specified in the Agreement will be in full force and effect and will be binding upon the
parties hereto. If the parties do not reach agreement on the revised service cost by July
31, either party may terminate this Agreement upon giving the other one hundred eighty
(180) days written notice of its desire to terminate this agreement.
The payment for each Contract Year will be made in four (4) equal installments on the
first(1 st) day of August,November, February and May of such Contract Year. Failure of
the DISTRICT to make payments in a timely manner will be considered a material breach
of this Agreement and will result in interest in the amount of 1% per month being
accessed on all delinquent amounts. Additionally for such a material breach, the CITY,
in its sole discretion, shall have the right, but not the obligation, (i) to suspend services
until the DISTRICT makes payment in full or (ii) to terminate this Agreement. In the
event of suspension or termination, the CITY shall provide the DISTRICT written notice
of the same.
5. The DISTRICT agrees that in receiving assistance from the CITY or other CIMA
members, the DISTRICT shall replace material used, and shall repair or replace
equipment lost or damaged in the control of a fire or emergency situation within the
Territory, in cash based on current replacement cost or in kind, in the same manner as
specified in Section 2.6 of the CIIVIA Bylaws adopted August 18, 2004, unless otherwise
specified herein, which bylaws are by this reference incorporated herein by this reference
for all intents and purposes. Reimbursement of damaged or lost equipment is required
without regard to the cause or causes thereof (including damage or loss caused by
preexisting conditions) or the negligence of any party or parties, including, but not
limited to the owner, the operator, the CITY and any CIMA member, as well as their
respective officers, agents or employees, whether such negligence be sole, joint or
concurrent active or passive. Material used includes, but is not limited, to, fire fighting
foam, hazardous materials containment or absorbent materials and chemical protective
clothing and equipment. Reimbursement of monies expended is required without regard
to the cause or causes thereof or the negligence of any party or parties, whether such
negligence be sole,joint, or concurrent, active or passive.
The obligations in this Paragraph 5 shall be in addition to and shall remain in effect
notwithstanding termination of the payments described in Paragraph 4 or the termination
of this Agreement. The reimbursements required pursuant to this Paragraph 5 shall be
due within thirty (30) days after the CITY renders the services resulting in the
DISTRICT's obligation to replace material used, and/or to repair or replace equipment
lost or damaged in the control of a fire or emergency situation within the Territory.
Failure of the DISTRICT to make payments in a timely manner will be considered a
material breach of this Agreement and will result in interest in the amount of 1% per
month being accessed on all delinquent amounts. Additionally, for such a material
breach, the CITY, in its sole discretion, shall have the right, but not the obligation, (i) to
suspend services until the DISTRICT makes payment in full or (ii) to terminate this
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that the CITY is not providing an adequate level of fire, chemical and medical emergency
: services to the DISTRICT.
10. In the event the terms and conditions of this Agreement are rendered ineffective or that
their effect is 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.
11. THE DISTRICT AGREES TO INDEMNIFY AND DEFEND THE CITY IN
ACCORDANCE WITH THE INDEMNIFICATION PROVISIONS CONTAINED IN
THE CIMA AGREEMENT, DEFINED IN PARAGRAPH 6, SAID AGREEMENT
BEING ATTACHED HERETO AND INCORPORATED HEREIN AS EXHIBIT"C."
12. The DISTRICT shall procure and maintain at its sole cost and expense for the term(s) of
the Agreement insurance against claims for injuries to person or damages to property
which may arise from or in connection with the performance of the work hereunder by
the CITY, its agents,representatives, volunteers, employees or subcontractors.
12.1 The DISTRICT's insurance coverage shall be primary insurance with respect to
the CITY, its officials, employees and agents. Any insurance or self-insurance
maintained by the CITY, its officials, employees or agents shall be considered in
excess of the DISTRICT's insurance and shall not contribute to it.
12.2 The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
a. Commercial General Liability
■ General Aggregate: $1,000,000
■ Per Occurrence: $500,000
■ Coverage shall be at least as broad as ISO CG 00 01 10 93
■ No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
b. Business Automobile Policy
■ Combined Single Limits: $500,000
or
BI per person $100,000
BI per accident $300,000
PD per accident $100,000.
■ Coverage for"Any Auto"
12.3 The following is applicable to all policies of insurance required in Paragraph 12.2:
a. Insurance carrier for all liability policies must have an A.M. Best Rating
of B+:VIII or better.
b. Only insurance carriers licensed and admitted to do business in the State
of Texas will be accepted.
C. Liability policies must be on occurrence form.
d. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except
after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the CITY.
e. The CITY, its officers, agents and employees are to be 4dded as
Additional Insureds to all liability policies. If the DISTRICT chooses to
Self-Insure, the General Liability and Automobile Liability Insurance
requirements of Paragraph 12.2, then the DISTRICT's extension of
Additional Insured Status to the CITY shall be governed by the applicable
Indemnity Agreement in the By-Laws of CIMA Section 2.6.
f. Upon request and without cost to the CITY, certified 'copies of all
p
insurance polices and/or certificates of insurance shall be furnished to the
CITY.
13. All notices required to be given hereunder shall be given in writing by overnight, or
facsimile transmission, or by 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 days after the date of mailing
thereof to the following addresses:
DISTRICT
Chambers County Improvement District No. 1
Attn: James D. Bonham
Smith, Murdaugh, Little &Bonham, L.L.P.
1100 Louisiana Street, Suite 400
Houston, TX 77002-5211
Fax No. (713) 652-6515
CITY
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Fax No. (281) 420-65 86
14. It is agreed and understood that the DISTRICT is responsible for the safety of its
personnel and persons performing emergency services for fire, chemical and medical
emergencies at the Territory.
I ,
15. The DISTRICT shall not sell, assign, or transfer any of its rights or obligations under this
Agreement in whole or in part without the prior written consent of CITY, which consent
shall not be unreasonably withheld.
16. Notwithstanding anything to the contrary contained in this Agreement, the CITY and the
DISTRICT hereby agree that no claim or dispute between the CITY and the DISTRICT
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 applicable State arbitration statute, including, but not limited, to
the Texas General Arbitration Act, provided that in the event that the CITY is sub j ected
to an arbitration proceeding notwithstanding this provision, the DISTRICT consents to be
joined in the arbitration proceeding if the DISTRICT's presence is required or requested
by the CITY of complete relief to be recorded in the arbitration proceeding.
17. In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author
the same.
18. This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, 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.
19. This Agreement shall bind and benefit the CITY and the DISTRICT and shall not bestow
any rights upon any third parties.
20. 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.
21. This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
22. 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 have executed this Agreement as of the date first
set forth above 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.
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THENCE in a Southerly direction with the East line of Tract No. 89M to the Southeast corner of
Tract No. 8 9M in the North line of Tract No. 125.
THENCE in an Easterly direct
ion with the North line of Tract No. 125 to the East right of way
line of F. M. Highway No. 2354.
THENCE in a Southerly direct
ion with the East right of way line of Highway No. 2354 to the
South line of Tract No. 125.
'
THENCE in a Westerly direction with the South line of Tract No. 125 to the Southwest corner of
Tract No. 125 in the East line of Tract No. 119.
THENCE In a Southerly direct
ion with the East line of Tracts No. 119, 118, 117, 117A9 116 to
the Southeas
t corner of Tract No. 116 in the North line of Tract No. 114.
THENCE In
' an Easterly direction with the North line of Tract No. 114 to the East right of way
�
line of F. M. Highway No. 2354.
THENCE in a Southerly dire
ction with the East right of way line of F. M. Highway No. 2354 to
South line of Tract No. 4-D as extended.
THENCE in a Westerly dire
ction with the South line of Tract No. 4-D to the most Northern
Northeast corner of Tract No. 10-B.
direction with the East and Northerly lines of Tract No, 10-B to a point
THENCE 1n a Southerly at the Intersection of th
e North line of Tract No. 10-B, as extended, with the East right of way
line of F. M. Highway No. 2354.
1 direction with the East and South right of way line of F. M.
THENCE In a Southwesterly
Highway No. 2354 4 to the intersection with the East right of way line of Live Oak Drive.
THENCE in a Southwesterly
direction with the East and South right of way line of Live Oak
Drive to the intersecti
on of the extended East line of the Nerco Oil and Gas Production Company
2.00 acre tract with the South right of way line of Live Oak Drive.
THENCE in a Northerly ortherl direction with the East line of the Nerco Oil and Gas 2.00 acre tract to
the Northeast corner of said 2.00 acre tract.
THENCE in a Westerly
direction with the North lines of the Nerco 2.00 acre tract, the Exxon
2.00 acre tract and the Exxon
5.00 acre tract of land to the Northwest corner of the Exxon 5.00
acre tract of land.
THENCE In a Southey rl direction with the West line of the Exxon 5.00 acre tract to the
Southwest corner of
the Exxon 5.00 acre tract and a corner of the Jones and Laughlin Tract
No. 3.
857946 3.DOC A-2
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1
ARTICLE II
REIMBURSEMENT- MATERIAL & EQUIPMENT
2.1 REIMBURSEMENT. COMPANY receiving assistance from CIMA Corporation or CIMA Members,
shall replace material used, and repair or replace any equipment damaged or lost, in the control of a fire or
emergency situation within the receiving COMPANY'S facilities, in kind or in cash at current prices.
REIMBURSEMENT OF DAMAGED OR LOST EQUIPMENT IS REQUIRED WITHOUT REGARD TO
THE CAUSE OR CAUSES THEREOF (INCLUDING DAMAGE OR LOSS CAUSED BY PREEXISTING
CONDITIONS) OR THE NEGLIGENCE OF ANY PARTY OR PARTIES INCLUDING THE OWNER OR
OPERATOR OF THE EQUIPMENT, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR
CONCURRENT ACTIVE OR PASSIVE. THIS REIMBURSEMENT OBLIGATION IS INAPPLICABLE
TO THE EXTENT THAT MATERIAL OR EQUIPMENT IS DAMAGED OR LOST BY REASON OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2.2 Reimbursement Definition. Damage to and loss of equipment refers to damage and loss as a
result of the emergency situation rather than from the wear and tear expected in the normal
operation of the equipment. The owner of damaged or lost equipment is entitled to repair of the
equipment, or replacement of the equipment if repair is not feasible for economic or other
reasons. The cost of replacement in that circumstance will be the current cost, in the Greater
Houston' Metropolitan Area, of new equipment with specifications similar to that of the
equipment to be replaced. The current cost of new, similar equipment is to be determined as of
the date of the damage or loss that necessitates the replacement of the equipment.
2.3 SURVIVABILITY. ALL PROVISIONS CONCERNING REIMBURSEMENT
OBLIGATIONS UNDER THIS AGREEMENT SHALL SURVIVE THE TERMINATION
DATE.
ARTICLE III
INDEMNIFICATION
3.1 INDEMNIFICATION, COMPANY RECEIVING ASSISTANCE FROM CIMA
CORPORATION OR CIMA MEMBERS, SHALL INDEMNIFY, DEFEND AND HOLD
HARMLESS (A)CIMA; AND (B)EACH AND EVERY CIMA MEMBER AND THE
AGENTS DIRECTORS OFFICERS AND EMPLOYEES THEREOF PROVIDING
ASSISTANCE (BOTH (A) AND B)HEREINAFTER"INDEMNIFIED. PARTIES"),FROM
AND AGAINST ANY AND ALL DEMANDS, CAUSES OF ACTION, DAMAGES,
INJURIES, FINES (INCLUDING PENALTIES OR OTHER CHARGES OR COSTS
IMPOSED BY ANY FEDERAL, STATE OR LOCAL AUTHORITY), LIABILITY,
ATTORNEY FEES, LITIGATION COSTS AND EXPENSES, AND LOSSES OF ANY KIND
OR CHARACTER FOR SICKNESS OR INJURY TO OR DEATH OF ANY PERSON
(INCLUDING ANY EMPLOYEE), AND FOR LOSS OR DAMAGE TO ANY PROPERTY
OWNED OR OPERATED BY CIMA CORPORATION, A CIMA MEMBER, OR ANY
OTHER PERSON OR ENTITY (INCLUDING ANY EQUIPMENT AND ANY NATURAL
RESOURCES)RESULTING DIRECTLY OR INDIRECTLY FROM THE RECEIVING
COMPANY'S USE OF EQUIPMENT OR EMPLOYEES OR FROM THE RESPONSE
ACTIONS UNDERTAKEN BY CIMA CORPORATION OR CIMA MEMBERS.
THIS INDEMNIFICATION IS APPLICABLE TO ALL EVENTS OCCURRING: (1) ON THE
ACTUAL PROPERTY OF COMPANY RECEIVING ASSISTANCE OR(2) ON PROPERTY
UNDER THE CONTROL OF THE COMPANY RECEIVING ASSISTANCE (SUCH AS
1
_LEASED WAREHOUSE SPACE). DEMANDS CAUSES OF ACTION DAMAGES
LEA � '
INJURIE
S, FINES LIABILITY LOSSES OF ANY KIND OR CHARACTER FOR SICKNESS
OR
DEATH OF ANY PERSON INCLUDING ANY EMPLOYEE AND FOR LOSS OR.
DAMA
GE TO ANY PROPERTY OCCURRING OFF OF THE ACTUAL PROPERTY OF
COMPANY RECEIVING ASSISTANCE OR OFF THE PROPERTY UNDER THE
CONTRO
L OF THE COMPANY RECEIVING ASSISTANCE WILL BE GOVERNED BY
COMMON LAW.
3.2
GROSS NEGLIGENCE WILLFUL MISCONDUCT CRIMINAL LAW. COMPANY
AGREES THAT THE INDEMNITIES PROVIDED FOR IN THIS AGREEMENT SHALL BE EFFECTIVE
REGARDLESS OF THE NEGLIGENT ACTS OR OMISSIONS OF THE INDEMNIFIED PARTIES
WHETHER SUCH NEGLIGENCE BE SOLE JOINT OR CONCURRENTq ACTIVE OR PASS AND
REGARDLESS OF WHETHER LIABILITY WITHOUT FAULT IS IMPOSED ON THE INDEMNIFIED
PARTIES EXCEPT'TO THE EXTENT THAT LIABILITY ARISES BY REASON OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNIFIED PARTIES.IN ADDITION THE
COMPANY SHALL NOT BE LIABLE TO ANY INDEMNIFIED PARTY FOR ANY CLAIMS OR
PENALTIES ARISING OUT OF OR RESULTING FROM THE INTENTIONAL VIOLATION OF ANY
CRIMINAL LAW.
3.3 Insurance. COMPANY also covenants and agrees that the indemnity and hold harmless provisions are not
limited,restricted,or in any way affected by the amount of insurance carried by COMPANY.
3 A SURVIVABILITY. ALL INDEMNITIES MADE BY COMPANY UNDER THIS AGREEMENT
SHALL SURVIVE THE TERMINATION DATE.
3.5 DEFINITIONS. "DEFEND" MEANS TO: (1)PROVIDE LEGAL COUNSEL AND DEFENSE TO
THE CIMA CORPORATION OR AT THE CIMA CORPORATION'S OPTION TO REIMBURSE CIMA
CORPORATION FOR ALL REASONABLE ATTORNEYS FEES GENERATED BY COUNSEL
SELECTED BY CIMA CORPORATION• AND 2 TO PAY ALL OTHER COSTS OF DEFENSE
INCLUDING ALL APPEAL AND SUPERSEDEAS BONDS.
ARTICLE IV
MISCELLANEOUS ;
4.1 Designated Emergencies - Participation VoluntaKy. There is no obligation on any CIMA Member to
contribute equipment or manpower to any particular emergency.Participation in any particular emergency is wholly
voluntary based on the needs and availability of a CIMA Member to respond.Thus,there is no liability on CIMA
Corporation or any CIMA Member for failing to respond to an emergency situation under this Agreement.
4.2 Governiniz Law. This Agreement shall be governed by,and construed in accordance with,the laws of the
State of Texas.
4.3 Attorneys Fees. In the event that any legal action is instituted between the parties pertaining to the
interpretation or enforcement of the terms of this Agreement,the prevailing party shall be entitled to recover a
reasonable allowance for attorneys fees and court expenses,to be fixed and determined by the court in which such
action is filed.
4.4 Notices. All notices,demands or communications relating to this Agreement that CIMA Corporation or any
CIMA Member may wish to send to COMPANY shall be in writing.
4.5 Severabilit . If any provision of this Agreement or portion thereof should be declared invalid for any reason,
the invalid provisions or portion thereof shall be deemed omitted and the remaining terms shall nevertheless be
carried into effect.
4.6 Waiver. The waiver of a breach of any term or condition of this Agreement shall not be deemed to constitute
the waiver of any other breach of the same or any other term or condition.
1
4.7 Number and Gender. Whenever required by the context,the singular number shall include the plural,and
the masculine or neutral gender shall include all genders.
4.8 Entire Agreement. This Agreement contains the entire understanding between the parties and supersedes
any prior written or oral agreements between them respecting the subject matter contained herein.No subsequent
modification of this Agreement shall be effective unless it is in writing and signed by all parties.
4.9 Assignment; Binding Effect. COMPANY may not assign its rights and obligations under this
Agreement. Subject to and without affecting the prohibitions herein with respect to assignment,this Agreement shall
be binding on the parties and their respective successors and assigns.
4.10 Non-members: Nothing in this Agreement shall entitle any person or entity not a party to this Agreement to
institute any claims,causes of action,remedy,or right of any kind arising out of the operations conducted pursuant
to this Agreement.
4.11 Term. Unless earlier terminated by COMPANY or CIMA Corporation,this Agreement shall remain in force
for so long as COMPANY is engaged in response activities relating to the Incident. NOTWITHSTANDING
SECTION 3.11 OF THIS ARTICLE, THE REIMBURSEMENT PROVISIONS AND INDEMNITIES
CONTAINED IN THIS AGREEMENT SHALL REMAIN IN EFFECT BEYOND THE TERMINATION OF
RESPONSE ACTIVITIES UNDER THIS AGREEMENT.
IN WITNESS WHEREOF,COMPANY and CIMA Corporation executed this Agreement by their duly
authorized representatives on the date indicated below.
Dated: Channel Industries Mutual Aid Organization("CIMA")
By[signature]
Name[printed]
Title
[Note:Any individual CIMA Member,or CIMA Specialist,or CIMA officer may
sign above on behalf of CIMA].
Dated: [COMPANY]
By[signature]
Name [printed]
Company
Title
WITNESSED BY: [Municipality,Governmental Agency or Entity]
By[signature]
Name[printed]
Title
Agency
Dated