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HomeMy WebLinkAboutResolution - 2006-R0187 - Interlocal Agreement - TEEX_ESTI - Airport Rescure Fire Fighter Academy - 04_26_2006Resolution No. 2006-RO187 April 26, 2006 Item No. 5.8 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Interlocal Agreement to hold an Airport Rescue Fire Fighter Academy (Fire Department), by and between the City of Lubbock and Texas Engineering Extension Service/Emergency Services Training Institute (TEEX/ESTI), and all related documents. Said Agreement is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 26th day of April f , 2006. MARC YACDOUGAL, MAYOR ATTEST: Re cca Garza, City Secretary APPROVED S TO CONTENT: Steve ailey, Fire Chief _. APPROVED AS TO M. Knight, tant Attorney gs/ccdocs/Interlocal Agrmnt-Fire Dept-TEEX-ESTI.res 4/ 10/06 Resolution No. 2006-RO187 April 26, 2006 Item No. 5.8 CONTRACT FOR USE OF FIRE DEPARTMENT TRAINING FACILITIES This Agreement is made this fourth (4t') day of April, 2006, pursuant to V. T. A. A., the Interlocal Cooperation Act, Texas Government Code, Chapter 791 by and between the City of Lubbock Fire Department and Lubbock Preston Smith International Airport (LFD/LPSIA), and the Texas Engineering Extension Service/Emergency Services Training Institute (TEEX/ESTI), on the following terms and conditions. I. RECITALS LFD/LPSIA is the owner of the following described real property (Property): The buildings, land on which the building is situated, drill tower, burn pits and fixtures, including the furniture, furnishings, and any and all equipment on the premises, and all else known as the "Lubbock Fire Training Facility" located at 1515-East Ursuline, Lubbock, Texas, and the Lubbock Fire Department Airport Rescue Fire Fighter (ARFF) Training Facility, located at Lubbock Preston Smith International Airport, located at 5400 N. N LK. Blvd., Lubbock County, Texas TEEX/ESTI in partnership with LFD/LPSIA desires to exercise certain privileges upon the Property. It is mutually agreed by and between LFD/LPSIA and TEEX/ESTI as follows: Contract for Use of Fire Department Training Facilities - Page 1 II. LICENSE TEEX/ESTI, in cooperation with LFD/LPSIA, shall have the right to use the property to train its students for a 40 hour, Basic Airport Rescue Fire Fighter Academy. III. TERM The term of this Agreement shall extend from October 15, 2006, through October 19, 2006. Thereafter, any extension of this agreement must be approved by all parties aforementioned. IV. CONSIDERATION In consideration for this agreement, LFD/LPSIA shall provide and or make arrangements to provide the following: 1. Classrooms (including audio-visual equipment) 2. Instructors 3. Burn Facilities (including fire fighting equipment, fuel, and water. 4. Transportation of students to and from all academy sponsored activities. 5. Lunch for all students and instructors. 6. Solicitation of sponsors for donations for meals doors prizes etc. 7. Registration Contract for Use of Fire Department Training Facilities - Page 2 In consideration of this agreement TEEX/ESTI shall provide and or make arrangements to provide the following: 1. Curriculum 2. Marketing 3. Instructors 4. Certificates 5. Travel for any TEEX/ESTI personnel required to attend to share in coordination/instruction at anytime or for the duration of the academy. Also in consideration of this agreement LFD/LPSIA and TEEX/ESTI have agreed to the following: 1. The recommended tuition cost per student to attend the academy should be $700.00 per student. 2. A refund of tuition would require a notification of not less than thirty days prior to the start of the academy. 3. All monies donated by vendors/sponsors to offset costs for catering meals to students and instructors during the academy will be the property and responsibility of LFD/LPSIA. 4. All monies made from the sale of t-shirts and caps during the academy will become property of the LFD/LPSIA. 5. All monies left over after the costs of the academy will be divided equally between LFD/LPSIA and TEEX/ESTI. Contract for Use of Fire Department Training Facilities - Page 3 6. All live fire training will be conducted in compliance with the following NFPA standards pertaining to live fire training. 1003- Airport Fire fighter professional qualifications 1403- Exterior class B fires, live fire training evolutions 1142-Water supply for suburban and rural fire fighting 1500- Fire fighter safety V. LIMITATIONS ON USE AND OCCUPATION OF PROPERTY LFD/LPSIA and TEEX/ESTI, its students, faculty, agents, representatives, and personnel shall NOT: 1, drink alcoholic beverages; 2. smoke; 3. use, possess, sell or dispense any illegal drugs or medicines; 4. engage in disorderly conduct; 5. use the Property in a way other than is reasonably necessary for conducting the basic ARFF academy training exercises; 6. allow anyone not in the academy, such as family members or friends of training participants, to come onto the Property; 7. commit or permit any act or acts in or on the Property or in any manner that will create liability or that will cause a cancellation of any insurance policy covering the Property, LFD/LPSIA, TEEX/ESTI, students, faculty, agents, representatives, or personnel; 8. keep, leave, store or use personal property or permit any such product or Contract for Use of Fire Department Training Facilities - Page 4 article to be kept, held, stored, used, or sold in or on the Property; 9. maintain, commit, or permit the maintenance or commission of any nuisance on the Property; 10. use the Property for any unlawful purpose; 11. permit anything to be done in or about the Property that will in any way conflict with any law, ordinance, rule, or regulation, affecting the occupancy and use of the Property, that has been or may be enacted or promulgated by any public authority; 12. commit, or cause to be committed, any waste on the Property; 13. obstruct or interfere with the rights of LFD/LPSIA, TEEX/ESTI employees, or injure or annoy them; or 14. allow the premises to be used for any improper, immoral, unlawful, or objectionable purpose. Any prohibited action taken is an automatic breach of this agreement justifying immediate termination by either party. VI. NOTICE A. General. Whenever notice from TEEX/ESTI to LFD/LPSIA or LFD/LPSIA to TEEX/ESTI is required or permitted by this agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand, (2) facsimile, or other reasonable means (in which case such notice shall be Contract for Use of Fire Department Training Facilities - Page 8 effective upon delivery), or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. TEEX/ESTI Address. Division Address and numbers for the purposes of notice are: Texas Engineering Extension Service Emergency Services Training Institute Lynn Bizzell Program Coordinator Lynn.Bizzell@teexmail.tamu.edu 301 Tarrow College Station, Texas 77840-7896 Fax (979) 847-9304 C. LFD/LPSIA Address. The Academy address and numbers for the purposes of notice are: City of Lubbock Fire Department Attn: Kelly S. Morman ARFF Training Coordinator kmorman@mylubbock.us 1515 E. Ursuline Lubbock, Texas 79403 Fax (806)767-3 03 1 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party, referring specifically to this Agreement, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. Contract for Use of Fire Department Training Facilities - Page 6 VII. NONASSIGNABLE This agreement is personal to LFD/LPSIA and TEEX/ESTI. It is not assignable and any attempt to assign this contract will terminate the contract. VIII. TERMINATION If either party wishes to terminate this Agreement, it is understood that written notice shall be given to the other party at least thirty (30) days prior to the start of the academy, unless otherwise stated herein. IX. MUTUAL DUTIES LFD/LPSIA and TEEX/ESTI will jointly resolve any matter wherein the LFD/LPSIA desires to summarily exclude from the Property any person who is deemed undesirable or is deemed dangerous or disruptive to LFD/LPSIA employees or property. The provisions of this section notwithstanding, in all other matters which are the subject of this agreement, the parties hereby expressly state that it is their intent that each party shall maintain separate and distinct control over its duties under this agreement. 1. DEFAULT AND TERMINATION Should LFD/LPSIA or TEEX/ESTI respective agents or representatives default in the performance of any provision of this Agreement, and not correct the default within ten (10) days after default, the nondefaulting party may declare this Agreement, and all rights and privileges and interests created by it, to be terminated. Upon nondefaulting party's electing to terminate, this Agreement shall cease and come to an end as if the day of nondefaulting party's election were the day originally fixed in this Agreement for its Contract for Use of Fire Department Training Facilities - Page 7 expiration, provided that, should defaulting parry cure all defaults within the ten (10) day notice, this Agreement shall not be canceled. Nondefaulting party may, in its discretion, allow defaulting party more than ten (10) days to cure defaults if such time is, in the opinion of nondefaulting party, reasonably necessary or shortened where stated herein. 2. NONDISCRIMINATION LFD/LPSIA and TEEX/ESTI for themselves, its representatives, and agents, as a part of the consideration hereof, does hereby agree that no person on the grounds of race, color, national origin, or disability shall be excluded from participation in, denied the benefit of, or be otherwise subjected to discrimination in the use of the Property. 3. LFD/LPSIA'S LIABILITY To the extent allowed by the laws and the Constitution of the State of Texas, TEEX/ESTI waive all claims, release, indemnify and hold harmless the City of Lubbock, Texas, its Fire Department, agents, and employees, in both their public and private capacities, from any and all liability, claims, suits, demands or causes of action which' may arise as a direct result of the negligent use by agents and employees of TEEX/ESTI of the City of Lubbock facilities. It is the express intention of the parties hereto, both TEEX/ESTI and the City of Lubbock, that the indemnity provided for in this paragraph is not indemnity by TEEX/ESTI to indemnify and protect the City of Lubbock from the consequences of the City of Lubbock's own negligence. It is further understood and agreed that the representatives of TEEX/ESTI assigned to and participating in the training program are not employees of LFD/LPSIA Contract for Use of Fire Department Training Facilities - Page 8 and are not entitled to any benefits, such as those covered by the Workmen's Compensation Act. X. IMMUNITY It is expressly understood and agreed that, in the execution of this agreement, neither party waives, nor shall be deemed hereby to waive, any immunity or defense that would otherwise be available to it against claims arising in the exercise of governmental powers and functions. XI. RESOLUTION This agreement shall be executed by the duly authorized official(s) of the party as r expressed in the approving resolution or order of the governing body of such party, a copy of which is attached hereto, and this agreement shall remain in effect until rescinded by resolution or order of such governing body and notice of that action is transmitted in writing to all other parties to this agreement. XII. ENTIRE AGREEMENT This agreement embodies the complete agreement of the parties hereto superseding all oral or written previous and contemporary agreements between the parties relating to matters herein and, except as otherwise provided herein, cannot be modified without written agreement of the parties. Contract for Use of Fire Department Training Facilities - Page 9 XIII. VENUE The parties to this Contract agree and covenant that this agreement will be enforceable in Lubbock County, Texas; and that if legal action is necessary to enforce this Agreement exclusive venue will lie in Lubbock County, Texas. XIV. SEVERABILITY If any of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this agreement are for any reason held to be invalid, void or unenforceable, the remainder of the terms, sections, subsections, sentences, clauses, phrases, provisions, covenants, conditions or any other part of this Contract shall remain in full force and effect and shall in no way be affected, impaired or invalidated. XV. APPLICABLE LAW This Agreement is entered into subject to the City Charter and Ordinances of the City of Lubbock and as they regulate the operations of its fire department, as they may be amended from time to time and is subject to and is to be construed, governed and enforced under all applicable State of Texas and Federal law. Sites of this Agreement is agreed to be Lubbock County, Texas, for all purposes including performance and execution. Contract for Use of Fire Department Training Facilities - Page 10 XVI. NON -WAIVER It is further agreed that one or more instances of forbearance by the parties hereto in the exercise of their rights herein, shall in no way constitute a waiver of any such rights. XVII. JOINT VENTURE It is the intent of the parties hereto and herein shall not be construed to create a joint venture between LFD/LPSIA and TEEX/ESTI according to the terms and considerations aforementioned in this agreement. XIII. MODIFICATION AND SUPPLEMENTATION This Agreement may be modified or supplemented at any time by mutual written consent between TEEX/ESTI and LFD/LPSIA authorized by the proper representatives. Contract for Use of Fire Department Training Facilities - Page 11 In witness whereof, the parties hereto have caused this Agreement to be executed CITY OF LUBBOCK CM ATTEST: UGAL, MAYOR REB CCA GARZA CITY SECRETARY APPROVED AS TO CONTENT: STE HAILEY, FIRE REF LOOMIS, DIRECTOR F AVIATION APPROVED AS TO FORM: HN M. KNIG ASSISTANT CITY ATTORNEY TEXAS ENGINEERING EXTENSION SERVICE/ EMERGENCY SERVICES I TITU LES B PAT BARRETT TEEX/ESTI ATTEST: By: Contract for Use of Fire Department Training Facilities - Page 12 WAIVER AND RELEASE OF CLAIMS Resolution No. 2006-RO187 April 26, 2006 Item No. 5.8 This Waiver and Release of Claims (Waiver) is entered into between the City of Lubbock, Texas (City) and Texas Engineering Extension Service/Emergency Services Training Institute (TEEX/ESTI), (Sponsor). DEFINITIONS City shall include the City of Lubbock, Texas, its representative officers, City Council, attorneys, agents, servants, officers, employees and all other persons, natural and corporate, in privity with them. Sponsor shall include the entity/agency employing Participant and authorizing Participant to take part in the training offered by TEEX/ESTI Participant shall include those persons participating in fire training, including but not limited to students, staff and faculty, conducted pursuant to that certain Contract entered between the City and the Texas Engineering Extension Service/Emergency Services Training Institute (TEEX/ESTI), pursuant to the terms of which, TEEX/ESTI was granted permission for the use of fire training facilities owned or operated by City for the purpose of training its students (Participants) for a 40 hour Basic Airport Rescue Fire Fighter Academy.. RELEASE IN CONSIDERATION OF THE CITY PERMITTING (PARTICIPANT) THE USE OF THE FIRE TRAINING FACILITIES, AS DESCRIBED IN THE SAID AGREEMENT BETWEEN THE CITY AND TEEX/ESTI, THE UNDERSIGNED SPONSOR DOES HEREBY RELEASE, AND BY THESE PRESENTS DOES HEREBY ACQUIT AND FOREVER DISCHARGE THE CITY OF LUBBOCK, ITS REPRESENTATIVE OFFICERS, CITY COUNCIL, ATTORNEYS, THEIR AGENTS, SERVANTS, OFFICERS, EMPLOYEES, AND ALL PERSONS, NATURAL OR CORPORATE, IN PRIVITY WITH THEM FROM ANY AND ALL WORKERS' COMPENSATION CLAIMS OR CAUSES OF ACTION ARISING ANY INJURY OR DEATH SUFFERED BY FROM THE USE OF THE ABOVE DESCRIBED FIRE TRAINING FACILITY BY THE UNDERSIGNED. IT IS INTENDED BY THIS AGREEMENT AND RELEASE TO RELEASE ALL WORKERS' COMPENSATION CLAIMS IN CONSIDERATION FOR TIRE USE OF THE SAID FIRE TRAINING FACILITY. IN THE EVENT THAT THE SPONSOR HAS WORKERS' COMPENSATION COVERAGE THROUGH A GOVERNMENTAL POOL OR AN INSURANCE COMPANY, A CERTIFICATE OF INSURANCE WITH THE LANGUAGE "WORKERS' COMPENSATION IS ENDORSED WITH A WAIVER OF SUBROGATION IN FAVOR OF THE CITY" SHALL MEET THE REQUIREMENTS OF THIS RELEASE. The terms of this Waiver and Release of All Claims are contractual and not merely recitals. Undersigned Sponsor warrants that this Waiver and Release of Claims has been read and fully understood. This Waiver and Release of Claims covers all claims known or unknown, present or future, resulting from the use of the fire training facility by the Participant. Undersigned Sponsor has the legal authority and is legally competent to execute this Waiver and Release of Claims. Furthermore, Sponsor signs same of his or her own free will and accord without any reliance on any representation of any kind or character not expressly stated herein. This Waiver and Release is valid and binding on all parties until rescinded in writing. This Waiver and Release of All Claims shall survive the termination of the Contract between City and TEEVESTI. Date: Signature: Title: Attest: sWcityattlohn/Release(Waiver and Release of ClaftnwTEEVESTI July 1, 2003 Resolution No. 2006-R018' April 26, 2006 �s Item No. 5.8 TEXAS ENGINEERING EXTENSION SERVICE - TEEX Awl TMN • SOM • Psrouo ADDENDUM TO CUSTOMER'S CONTRACT FORM CUSTOMER NAME: City of Lubbock Fire Department DATE: March 8, 2006 Texas Engineering Extension Service (TEEX) and the Customer are this day entering into a contract and, for their mutual convenience, the parties are using the standard contract and/or purchase order form provided by the Customer (referred to hereafter as the "Customer's Contract Form"). This addendum, duly executed by the parties, is incorporated into the Customer's Contract Form dated March 8, 2006 and made an integral part thereof. The Customer's Contract Form is, with the exceptions noted herein, acceptable to TEEX. Nonetheless, because certain standard clauses that may appear in the Customer's Contract Form cannot be accepted by TEEX because of its status as an agency of the State of Texas and in consideration for the convenience of using provisions in the Customer's Contract Form instead of negotiating a separate contract document, the parties agree that none of the provisions listed below, if they appear in the Customer's Contract Form shall have any effect or be enforceable against TEEX. 1. Requiring TEEX to maintain any type of insurance either for TEEX's benefit or for the Customer's benefit. 2. Renewing or extending this Agreement beyond the contract term or automatically continuing the contract period from term to term. 3. Requiring or stating the terms of the Customer's Contract Form shall prevail over the terms of the purchase order or this Addendum in the event of conflict. 4. Requiring the application of the law of any state other than Texas in interpreting or enforcing the Agreement, or resolving any dispute under the Agreement. This Agreement shall be construed and enforced in accordance with the laws of the State of Texas. 5. Releasing the Customer or any other entity or person from its legal liability, or limiting liability, or unlawful or negligent conduct or failure to comply with any duty recognized or imposed by applicable law. 7. Requiring any total or partial compensation or payment for lost profit or liquidated damages by TEEX if the Agreement is terminated before the end of the contract term. Changing the time period within which claims can be made or actions can be brought under the laws of the State of Texas. TEEX Form 10-226 Page 1 of 3 Approved as of 01105 8. Binding TEEX to any arbitration or to the decision of any arbitration board, commission, panel or other entity. 9. Obligating TEEX to pay costs of collection or attorney's fees. Alternative Dispute Resolution The dispute resolution process provided for in Chapter 2260 of the Government Code shall be used, as further described herein, by the Texas Engineering Extension Service (hereinafter "TEEX") and the contractor to attempt to resolve any claim for breach of contract made by the contractor: A. A contractor's claim for breach of this contract that the parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Chapter 2260, subchapter B, of the Government Code. To initiate the process, the contractor shall submit written notice, as required by subchapter B, to the TEEX Deputy Director. Said notice shall specifically state that the provisions of Chapter 2260, subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of TEEX and the contractor otherwise entitled to notice under the parties' contract. Compliance by the contractor with subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, subchapter C, of the Government Code. B. The contested case process provided in Chapter 2260, subchapter C, of the Government Code is the contractor's sole and exclusive process for seeking a remedy for any and all alleged breaches of contract by TEEX if the parties are unable to resolve their disputes under subparagraph (A) of this paragraph. C. Compliance with the contested case process provided in subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this contract by TEEX nor any other conduct of any representative of TEEX relating to the contract shall be considered a waiver of sovereign immunity to suit. D. The submission, processing and resolution of the contractor's claim is governed by the published rules adopted by the Office of Attorney General of Texas pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended. These rules are found at 1 T.A.C. Chapter 68. E. Neither the occurrence of an event nor the pendency of a claim constitutes grounds for the suspension of performance by the contractor, in whole or in part. F. The designated individual responsible on behalf of TEEX for examining any claim or counterclaim and conducting any negotiations related thereto as required under §2260.052 of H.B. 826 of the 76th Texas Legislature shall be the TEEX Deputy Director. To the extent the language in this Addendum is in conflict with any language in the Customer's Contract Form, the language in this Addendum will control. TEEX Form 10-226 Page 2 of 3 Approved as of 01105 This Addendum and the Customer's Contract Form constitute the entire Agreement between the parties and may not be waived or modified except by written agreement between the parties. If a court of competent jurisdiction finds any provision of this Addendum and the Customer's Contract Form illegal, ineffective or beyond contractual authority of either party, then the offending provision will be stricken and the remainder of the agreement between the parties will remain in effect. IN WITNESS WHEREOF, the parties have caused this Addendum to be duly executed, intending thereby to be legally bound. For the Customer: Nai Title: Date: .4 / I I> / V lQ Texas Engineering Extension rvice: By. Name: Les Bunte or Pat Barrett Title: Director/Associate Director — ESTI Date: 41-1 V / OG TEEX Form 10-226 Page 3 of 3 Approved as of 01105