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HomeMy WebLinkAboutPR 15033 INDUSTRIAL DISTRICT AGMT. W/TOTAL FOR EXPANSIONinteroffice ~ R M E M ~ To: Mayor, City Council, and City Manager , From : Mark Sokolow, City Attorney =-- ~~-- ` Date : December 1~2 , 2 0 0 8 . , ~.~ =- ~.~ : .. . ,. . ,. . . .. ~ .~ . . : . _:. . _. Subj~ect: P. R. No. 15033; . _ ~ ~, ,~:.:..J:_~_ Special Council Meeting December 15, 2008 ~ ~ Regular Council Meeting Decen~ber 16, 2008 Attached is P. R. No. 15033 authorizing the City Manager to exeCUte an Industrial District Agreement with TOTAL for their ex ansion. We received the~latest draft at 4:47 p.m. on Friday, ~ ~ December 12, 2008 and we a~e still reviewing it. MTS:ts , Attachment ~ cc: Director of Finance z.pr15033_memo P. R. No. 15033 12/12/08 ts RES4LUTION N0. J A RESOLUTION AUTHORIZING THE CITY MANAGER T0 EXECUTE AN INDUSTRIAL DISTRICT AGREEMENT WITH TOTAL FOR THEIR EXPANSION. WHEREAS, the City Council of the City of Port Arthur deems it }, - ., __ f,, _. .r ;~ . ~ ~'~~~ ~~~ in the best interests of the citizens of Port Arthur to enter into an "In Lieu of Tax" Agreement with Total for their expansion. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: ' Section 1. That the facts and opinions in the preamble are true and correct. - Section 2. That the City Council hereby authorizes the City Manager to execute an "In Lieu of Tax" Agreement with Total for t~eir expansion, in substantially the same form as.attached hereto as Exhibit "A". ~ , 'Section 3. , That Total for their expansion shall sign and return the Agreement by December 23, 2008, or this Resolution is null and void and the property described herein is annexed, n effective December 31, 2008 at 11:59 p.m., as further delineated in P. 0. No. 5925. ~ Section 4. That a copy of the~caption of this Resolution be spread upon the Minutes of the City Council. , ~ READ, ADOPTED AND APPROVED on this day of ~ f A.D. , 2008, at a Meeting of the City Council of the City of Port z.pr15033 Arthur, by the following vote: AYES: Mayor Councilmembers ~ ~ , ~ , , MAYOR ATTEST: TERRI HANKS, ACTING CITY SECRETARY APPROVED AS TO FORM: See City Attorney Memo CITY ATTORNEY , , APPROVED FOR ADMINISTRATION: CITY MANAGER z.pr15033 „ " ~ ~ ~ STATE OF TEXAS ~ § ~ COUNTY OF JEFFERSON ~ . INDUSTRIAL DISTRICT AGREEMENT WITH TOTAL PETROCHEMICALS USA, INC. (2009-2013~ WHEREAS , in 2 0 O 1, the City ~of Port Arthur { hereinaf ter - ref erred to as t~e "City" } and ATOFII~A Petrochemicals , Inc . ~ entered into an Industrial District Agreement ~for the refinery for the payment of $2,250,040 per year from 2002 to 2008; and, WHEREAS, the Industrial District Agreement w~s approved by Resolution No. 01-301 and expires December 31, , 2008; and, WHEREAS, ATOFINA Petrochemicals is now known as TOTAL PETROCHEMICALS USA, INC. (hereinafter referred to as the "Company" ) ; and, ~ WHEREAS, the assessed value on this facility has grown over the years to the JCAD assessed value of at least $640,387,740; and . WHEREAS, Sabina Petrochemicals, Inc., BASF Corporation and ATOFINA Petrochemicals, Inc. entered into an Industrial District ~Agreement for a new butadiene extraction unit, olefins conversion unit and alkylate unit as approved by z.ida TOTAL 2009-2013.12.9 1 70452944.2/10707537 , Resolution No. 02-25 which provides for payments of $ 2 5 2, 0 0 0 on September lst of each year f rom 2 0 0 5 to 2 0 0 8 and $315,000 on September lst of each ear from 2009 to 2012; Y and WHEREAS, the City Council is concerned as to the unemployment rate of Port Arthur residents; and,~ .;. . WHEREAS, the City Council is interested in maximizing job opportunities and contracting opportunities for Port Arthur residents and Port Arthur businesses and contractors, and the City Council is interested in working with industry and Lamar State College-Port Arthur to obtain , sound information on current hiring and procurement '' efforts, including .resu~ts, and working with industry to try to increase employment opportunities for Port Arthur residents and procurement for Port Arthur businesses; and WHEREAS, the City` Council also believes improved ~ opportunities for minority and women-owned businesses is important; and WHEREAS, the Company's hiring and procurement ~ , experience and efforts to increase ~Port Arthur resident ~ hiring and Port Arthur procurement opportunities will be considered by the City Council in future in-lieu of tax contractual agreements; and 2 ~. ::_ : 1 z.ida TOTAL 2009-2013.12.9 70452944.2/10707537 WHEREAS, the Company owns the land described in Attachment "A"; and WHEREAS, the City and the Company desire to enter into an Industrial District Agreement with respect to the land ~described in Attachment "A" that is within the ~ . ~ extraterritorial jurisdiction of the City; and , ,~ : ~~ ,. ~ ~ WHEREAS, the City and the Company agree that there has been full and adequate considera~ion for this Agreement; and WHEREAS, this Agreement is authorized under Sections 42.044 .and 212..172 Local Government Code; Vernon's Texas Code Annotated and Article l, Section 5 of the City's Charter, and the parties agree that the following terms are ~ reasonable, appropriate, and not unduly restrictive of 1 business activities; and , WHEREAS, all parties find that this Agreement, as delineated herein, is beneficial to each party. NOW, THEREFORE, in consideration of the promises and the ~nutual agreements of the parties contained herein, the City and the Company agree with each other as follows: Section 1. Payments by the Comp,any. (a) For each of the tax years 2009 through 201,3, the ~ 1 Company ~shall pay to the City the amounts delineated in z.ida TOTAL 2009-2013.12.9 3 70452944.2/10707537 this Section 1 so long as this Industrial District Agreement is in full force and effect and all of the land described in Attachment "A" is not annexed by the City. For purposes of this Agreement, the term "tax year" means ~ the calendar year, i.e., January 1 through~December 31. (b) The Company .shall pay to the City of Por~ Arthur . - . , , ,, . -$3,600,000 on January l, 2009~, with respect to the ref iner~ . In addition, on October ~:5th of each of the tax Y years 2009 through 2013, and subject to the provisions of Section 1(c); the Company sha~l pay to the City of Port Arthur an amount equal to seventy- f ive percent ~ 75 0) of the amount of property taxes that the Company would have paid to the City with respect to the taxable value (as defined in Section 5 below) of the land, improvements, units, , ~ equipment, inventory and all other property located on the land, as described in Attachment "A", and pertaining to the , refinery as i.f they had been located within the corporate limits of the City of Port Arthur. Each of such annual payments will be reduced by 200 of the January 1, 2009 , payment (i. e. ,$3, 60~0, 000 x 20 0=$720, 000} . Such annual payments will be further reduced by a credit for interest on the January 1, 2009 payment, calculated as described ~ below, at 6o per year. Therefore, such annual payments will be as follows: , z.ida TOTAL 2009-2013.12.9 4 70=452944.2/10707537 ~ Date Company's payments to City January l, 2009 , ~, $3,600,000 October 15, 2009 75~ of ~taxes as if the property was within the City less $891,000 October 15, 2010 75~ of taxes as if the property was within the City less $892,804 October 15, 2011 75~ of taxes as if the property was within the City _ _ less $849,600 _ October 15, 2012 75~ of taxes as if the property was within the City le,ss $806,400 October 15; 2013 75~ of taxes as if the property was within the City less $763,200 - (c) Notwithstanding anything contained herein to the contrary, with respect to each of the tax years 2010 through 2013,: ~ (i) if the~taxable value of the taxable portion ~, of the land, improvements, units, equipment, inventory and all other property located on such land, as described in Attachment "A", and pertaining to the refinery for such tax year exceeds such taxable value for the immediately preceding tax year by more than ten percent (l00), then for purposes of calculating the amount of the payment for such tax year under Section 1(b), such taxable value, for such taxable year shall be an amount equal to 1100 of such taxable value for the immediately preceding tax year; and z.ida TOTAL 2009-2013,12~.9 ~ ~ 5 70452944.2/10707537 ( ii ) if the taxable ~value of the taxable portion of the land, improvements, units, equipment, inventory and all other property located on such land, as described in Attachment "A", and pertaining to the refinery for such tax year is less than such taxable value for the immediately ;~ preceding tax year by more than ten percent (10 0), then f or ;. ..,~ ~ :,, , purposes of calculating the amount of the payment for such tax year under Section l(b), such taxable value for such tax year shall be an amount equal to 900 of such taxable value for the immediately preceding tax year. If, for example, such taxable value for the tax year 2010 ~ a is 150 less than such taxable value for the tax year 2009, the amount of the pay~ent for 2010 under Section 1(b~ is ~ , ~ equal to the~ product of the City's tax rate for 2010 ~ multiplied by 75% multip~lied by 900 of ~such taxable value for~the~tax year 2009, less ~$892,800. If, for example, ' such taxable value for the tax year 2010 is 15o more than , such taxable value for the tax year 2009, the amount of the , payment for 2010 under Section l~b) is equal to the product ~ of the City' s tax rate for 2010 multiplied by 7~5 a multiplied by 1100 of such taxable value for the tax year 2009, less $892,800. (d) The payments as delineated in th.is Agreement are + in addition to the payments received from Sabina z.ida TOTAL 2009-2013.12.9 6 70452944.2/10707537 ~ ' Petrochemicals, Inc., BASF Corporation, Inc. and ATOFINA Petrochemicals, Inc. as per the Industrial District Agreement that was entered into with Sabina Petrochemicals, Inc., BASF Corporation, Inc. and ATOFINA Petrochemicals, Inc. that was approved by Resolution No. 02-25. (e) It is contemplated that the Company will be enter~ng into a new agreement with the City for the "Deep Conversion Proj ect" , and the ~"Deep Conversion ~ Proj ect" is not a part of the "refinery" for purposes of th~is Agreement. The City will receive additional monies as delineated in the Industrial District Agreement for the "Deep Conversion Project". ' (f) The City shall not refund or credit any "In Lieu , of Tax" payments previously paid by the Company prior to the date of the execution of this Agreement, either ~ directly or indirectly, to the City. ExCept as delineated in this Section 1 and in Section 15, once an "In Lieu of Tax" payment is paid to the City, the City shall not refund ~ or credit any of said payment. Section 2. Certain Emergencies. If requested - orally or in writing by the Company, the City's Fire Department may, in its sole discretion, provide back-up Fire Suppression Support as ~determined by the City's Fire Chief, and the City's Police Department may, in its sole z.ida TOTAL 2009-2013.12.9 ~ 70452944.2/10707537 discretion, assist in providing an evacuation route and traffic control in the case of a fire or a chemical release at the Company's facilities ~ located in the City's ~ ~ . ~ extraterritorial jurisdiction, at no cost or expense to the Company. Nevertheless, the Company shall abide by and , ~ , shall take such precautions as to prevent (1) ~fires, . .,; , ~ explosions and chemical- releases and (2) the imprudent discharge of storm water that Contribute to fl~oding on adjacent property. The Company shall also put in place an evacuation plan for the Company's facilities located o~ the i land described on Attachment "A" that is consistent with industry standards and/or as is required by applicable ; ~ federal and state laws and the health and safet~r laws of the City of which the Company has been notif ied by the City. The Company shall employ or provide sufficient primary fire suppression response, as well as primary response for the control and abatement of chemical r releases. The Company shall provide the City's Fire Chief and Police Chief with Emergency Response Plans for any plants, refineries, chemical operations or other hazardous operations that take place on the land, as described in , Attachment "A" .. I f. there ~ i s a f ire and the Ci ty i s requested to provide initial and primary (as opposed to back-up) fire suppression services or if a clean up is , z.ida TOTAL 2009-2013.12.9 8 70452944.2/10707537 ~ ~ \ 1 required of the City, the Company will pay to the Cit~r the costs and expenses incurred by ~the City and any of its departments or of any of its affiliated providers, i.e., ambulance companies that are called to the scene. ' ,, Section 3. Certain Notifications. The Company , . shall immediately notify the central dispatch office which .-.- . ~. . . , ~.~~ . .~. ..~ ~ ~ serves the City's Fire Chief~, Police Chief, and the City's ~~ ~ , , Ernergency Management Coordinator of all incidents involving ~- fires, serious, injuries, deaths, chemical releases and , flooding that create a health and safety hazard to the community or that exceed permissible exposure limits under applicable state and federal 1aw. Section 4. Annexation for Health, Safety and Welfare Reasons. It is specifically ,stipulated that nothing in this Agreement will~ in any manner limit~or restrict the authority of the City to annex all or part of said lands and facilities during the period of the Agreement if the City should determine that such annexation is reasonably necessary to promote and protect the general health, safety, and welfare of the persons residing within , or adjacent to the City, provided however, that the City agrees that such~ annexation for the land described in Attachment "A" prior to October 1, 2013 will not be made for revenue purposes only. z.ida TOTAL 2009-2013.12.9 70452944.2/10707537 9 i \ ~ ,Section 5. Annexation Due to Legislative Action. Notwithstanding the provisions of Section 4, the parties ~ agree and consent that the City may annex the land described in Attachment "A" if legislation is enacted which limits or restricts the authority of the City to annex all or part of said land~and improvements. In the event of - .,, annexation under this'Se~tion 5 or the preceding Section 4, ~ (i~ the Company will not be required ~to make further ~ , ~ p~yments under this Agreement for any calendar year , commencing after annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payments for the year during which such annexation becomes ef f ective if the annexation ~becomes ef f ective af ter Janu~ry ~ lst of said year, and (ii} the Company shall not be required ) t/o pay ad valorem taxes to the City f or the same period of time they have already paid an "in lieu of tax" payment , with respect to the property~described in Attachment "A" to this Agreement. If for. any reason the City is prevented i , from annexing such property~and if the parties cannot reach an agreement on a new payment schedule or on a new "in lieu of tax" agreement, the Company agrees that, for so long as , it or its assignees and successors or affiliates own such property, it will continue to pay to the City the "in lieu of tax" payments delineated in Section 1 until December 31, ; z.ida TOTAL 2009-2013.12.9 10 _ , 70452944.2/10707537 ~ 2013, and will thereafter continue to annually pay the City an "in lieu of tax" payment amount equal to seventy-f ive percent ~750~ of the amount of property taxes that the Company would have paid to the City with respect to the taxable portion of the land, irnprovements, uni~ts, ~ equipment~, inventory and all other property located on such , ' . .,1 . ~ / • - land, as described in Attachment "A:', as if~ they had been i ~ ~ located within~ the corporate limits of the C~ity of Port Arthur. Payments will be due on Oc~t~ober 15th of each year. ~ ~ ~ ~ In the event ~the C,ity is prevented f rom annexing such . property described in Attachment "A" in the circumstances described in the first sentence of this~ Section 5, then pursuant to Sections 42.044 and 212.172, Local Government Code, the Company agrees and consents that the City has the option, in the City's sole discretion, to~ extend this Agreement and that the Company wil~l continue to annually. pay the City "in lieu of tax" payments at the seventy-five (750) rate, as described in the immediately preceding sentence, for s~ccessive periods not to exceed 15 years each, for a total duration not to exceed 45 years, or the maximum period allowed by law, whichever is longer. As used in this Agreement, "taxable value" means the taxabl~ value as determined by the Jefferson County Appraisal ~ District in appraisal rolls after the completion of all ~ ~=-=.:~=~1 - .- ~ z.ida TOTAL 2009-2013.12.9 1~ 70452944.2/10707537 ~ . litigation and appeals (if any), of the taxable portion of the land, improvements, units, equipment, inventory and all other property located on such land, as described in Attac~ment "A", control devices leased by thE ~ 4~ ?, l: territorial jur; Attachrnent "A". excluding the value ofr exempt pollution ~ r , and any other exempt property, owned or Company and located within 'the extra- isdiction of the City, as described in Such "taxable value" also includes the taxable value on such rolls of any property that is located in a foreign trade zone or in any other type of federal, state, or local zone. Section 6. Future Actions. The parties agree that the City has the sole discretion, after October 1, 2013, to annex the property described in Attachment "A" or to enter into negotiations with the Company regarding an agreement concerning the payment by the Company of additional "in lieu of tax" payments for future years . ~ Section~~7. Lessees and Other Owners. The present owners and lessees of the land, improvements, units, equipment, inventory, and all other property l~cated on the land, as described in Attachment "A", are described in Attachment "B". ~'he City reserves the ri~ht to annex that , tract or parcel with the minimum required adj acent area, as I per Chapter 43 Local Government Code, if the owners or the z.ida TOTAL 2009-2013.12.9 12 , 70452944.2/10707537 • lessees do not pay an "in lieu of tax" payment for its interest in the land, improvements, units, equipment, . inventory, and all other property located on the land, as described in Attachment "A". Nothing contained herein shall be construed to prohibit or prevent the Company from paying the other owners' or lessees `"ir~. l.i~e~u of . ta.x" . ., , ., - , payment to prevent-annexation by the City. If ~he City annexes a tract or tracts, such annexed traCt or tracts shall be deleted from the description of the land set forth , on Attachment "A" for all purposes of this Agreement, and the Company's total "in lieu of tax" payments under this Agreement will be reduced accordingly. Section 8. Assignment; Binding Effect. If the Company desires to assign this Agreement to any person, the Company shall provide w~itten notice of such assignment to the Cit and shall receive the written consent of the City Y Council, by a duly adopted Resolution, which written consent will not be unreasonably withheld, delayed or ` conditioned. The Company shall provide a description of the assignee and such other information as is reasonably requested to indicate that the assignee will operate the facility as a reasonably prudent operator, act as a good corporate citizen, and will fully abide by the terms of this Agreement. If the assignment is approved by the City _ ~-. _=~ z.ida TOTAL 2009-2013.12.9 13 70452944.2/10707537 Council, the Company shall be relieved of its obligations under this Agreement to the extent that the assignee expressly assumes such obligations. Sub~ect to the foregoing, this Agreement shall inure to the benef it of and be binding upon the parties hereto and their respective -. , ~: : - ~u~cessors and.assig~ns. . ,r .o , ,. . - Section 9. Equitable Relief. It is agreed by the - • ~ .. parties to this Agreement that the Company and the City have the right to seek equitable relief , including specif ic performance of this Agreement. . Section 10. Inspections. The Company shall allow a reasonable number of authorized employees and/or representatives of the City who have been designated and approved by the City Manager, City Council, or Mayor to ~ave access to the land described in Attachment "A" during the term of this Agreernent to inspect the plants~ thereon and any improvements thereto to determine compliance with the terrns and conditions of this Agreement. Al1 such inspections will be made at m~tually agreeable times and will only be conducted in such manner as to not interfere ~ with the Company's safety standards and security standards and rules. All such inspections will be made with one or more representatives of the Company and in accordance with the Company's safety standards. The Company may require ~ ~~ 14 _ _~ . :, z.ida TOTAL 20~9-2013.12.9 70452944.2/10707537 \ any person conducting such an inspection to execute a confidentiality~ agreement before entering the Company's facilities. Section 11. Port Arthur Industrial Group. The Company shall, subject to the Company's annual management ~ approval, participate in the Por~ ~ArtY~ur Industrial Group during the l~ife of this Agre~ment in order to improve employment opportunities for Port Arthur residents.. The Company further agrees to encourage its contractors and subcontractors to establish and fund their own apprenticeship, internship,~ education and/or mentoring programs and projeCts for the training of Port Arthur residents for regular full-time jobs in the Port Arthur area. Section 12. Pro ram. Port Arthur Local Business Enterprise ._- _ 1 - ~^ ~a7 The City recognizes that proactive steps must be. ,, taken to help ensure that Port Arthur local business enterprises thrive and continue to benefit our community ` economically and socially. The goals of the Port Arthur , Local Business Enterprise Prograrn are to create, a program that promotes spending by companies that have industrial district agreements with qualified Port Arthur local business enterprises as well as to increase the diversity z.ida TOTAL 2009-2013.12.9 15 70452944.2/10707537 , of Port Arthur bu~sinesses with ~hich such companies procure ~ goods and services so that the pool of such businesses is representative of the business community at large. (b) As used in this Sect,ion 12: ~i) "LBE" means a Port Arthur business (including, but not limited to, a Port Arthur minority and/or women owned business enterprise ("MwBE"~, a Port ,~ Arthur ~historically underutilized business ~"HUB''.}, and a ,Port Arthur disadvantaged business enterprise ("DBE")) that has been certified as an,LBE under the procedures and --, criteria specified in Section 12(d), but such term shall , 1 not include any Port Arthur business that has ceased to be ; so certified. (ii) "Commercially Useful Function" means the performance of the following functions by a business : (A) being directly responsible for providing the materials, ~equipment, supplies or services as required by the contract solicitation, ~B} performing work that is normal for its business services, and (C) carrying out its obligations by actuall~r performing, managing, or supervising the work involved. A business is not performing a"Commercially Useful Function" when its role is limited to that of an extra participant in a transaction, contract, or profit ,.r ~ z.ida TOTAL 2009-2013.12.9 16 70452944.2/10707537 through which funds are passed in order to obtain the appearance of LBE participation, e.g., a sham transaction. ( iii ~ "good faith ef forts" means commercially reasonable efforts to further qualified LBE participatio~ or otherwise satisfy the requirements contained in this . :Section 12 which, by their sCOpe, intensity, and , ,. , appropriateness to the objective, can reasonably be expected to fulfill the program requirements. ~ (c7 The Port Arthur Local Business Enterprise Program shall include, but is not limited to, good faith efforts with respect to utilization of qualified LBE's as follows: (i) arranging solicitations, times for presentation of bids, quantities, specifications, and delivery schedules in ways that~facilitate qualification of a LBE partic.ipation, except where it is not commercially reasonable to do so without material added expense or . substantial inconvenience, or where there would be a , ~ , material sacrifice in operational or construction efficiency; ~ , ~ (ii~ carrying out information and communication programs on contracting procedures and specific contract s opportunities (e.g., facilitating the inclusion of J qualified LBE's on the Company's bidder list); and , (iii~ helping support: - , - ~ ._ . . ~ z.ida TOTAL 2009-2013.12.9 17 70452944.2/10707537 • an educational program to inform , qua~ified LBE's of opportunities an~ the Company's requirements; and ~ publication of a local business directory. ~ _ , (iv) paying at least the~ prevailing wage, as reasonably set by the City, in accordance with Chapter 2258, Texas Government Code, V.T.C.A., after the City has~ , provided reasonable advance notice to the Compan~ of the ~ meeting at which such prevailing wage is reasonably set and ~ afforded the Company an opportunity to be heard by the City Council on such matter at such meeting. ' ~d) Through appropriately promulgated procedures, the City, using an independent source (Lamar State College of Port Arthur or other mutually agreeable party~, shall certify as an LBE any business that meets a,ll of the following criteria: • The business is financially and operationally independent from, and operates at arm's length to, any other business. ~ • The business has been in operation for at least six months within the City. •'The busine'ss is a for-prof it enterprise . • The business' performs a Commercially Useful Function. • The business maintains its prinCipal place of , business at a fixed, established c~ommercial address (and not a temporary or movable offiCe, z.ida TOTAL 2009-2013.12.9 18 70452944.2/10707537 a post off~ice box,~ o~ telephone answering service or a temporary short-term lease) that is within the boundaries of the City and that provides all of the services for which LBE certification is sought, other than work required to be performed at a job site. Suppliers are required to maintain their ~ principal place of~ business within ~he ~ boundaries of the City. r~• The business can be expected to satisfy . `~ qualif ications specif i.ed by the . Company, ~ including, but not limited to, financial ; viability, an adequate safety.record, employees that can pass background and drug testi~g checks, and the business's ability to cornply with applicable local, state and federal regulations and licensing requirements. ~e) The Company will notify (in writing or by e-mail) the following of job openings: ~ City of Port Arthur ' ~ ~ The Port Arthur News ~ .~ • Texas Work ~'orce Commission , • Lamar State College of Port Arthur • Port Arthur ISD • Sabine Pass ISD , • Digital Work Force • Any of the following who have provided written notice to the City stating t~at it wants to ~eceive notif ication of such j ob openings and ider~tifying its mailing and e-mail addresses, and the ~ City has provided the Company with a , copy of such written notification: ~ Port Arthur labor unions a Associations representing historicall.y underutilized segments of the population in Port Arthur z.ida TOTAL 2009-2013.12.9 ' 19 70452944.2/10707537 The Company will also request that its contractors and subcontractors consider notifying the above entities of their respective job d openings. (f) The Company will make good faith efforts: .. • to have their lar.ge prime contractors obtain ~~ qualif ied LBE bids bn contracts subj ect to =-- . . ~his Agreement; , ~ , ~ to arrange subcontracts by size and type of work to improve the opportunities for LBE's to participate, including reasonably dividing projects into smaller parts, except " where it is not commercially reasonable to do so without material added expense or substantial inconvenience, or where there would be a material sacrif i,ce in operational or construction efficiency; • to hire qualified citizens of Port Arthur for regular, full-time jobs; and ~ . ~ to request its prime contractors, to consider soliciting through the local office of the Texas Workforce Commission and general media to'hire qualified Port Arthur residents for jobs and taking such other measures as ~ delineated in this Agreement. ~~ , (f) (i) The Company and the City agree to set ` up ~a three-member grievance board (the "Grievance Board") made up of one member appointed by the City, one member appointed by the Company, and one member who will be the head of the Grievance Board and will be from Lamar State Colle~ge of Port Arthur or be another person mutually , z.ida TOTAL 2009-2013.12.9 20 ?0452944.2/10707537 ' ~ acceptable to the City and the Company. The head of the , Grievance Board will have the tie breaking vote if needed.~ The head of the Grievance Board will serve as facilitator and will receive a reasonable stipend for his or her time, to be paid equally by the City and by the Company. ' (ii) A written grievance can be made to the . ~~ ~ Grievance Board by a Port Arthur business who claims that it sought to be employed by the Company and was not given a due opportunity under standards set forth in the terms of this Agreement. , (iii) If a written grievance is made, the Company shall make a written response within fourteen (14) days ~thereof. The Grievance Board will meet to review the grievance and the Company's response within thirty (30) ~ days of the date of the grievance . . ~iv) If an LBE or other business, or its ~ designee, files two or more unfounded complaints of business discrimination, the LBE or business, and/ or its , ''? designee, will be in violation of the City's LBE program and the Grievance Board can recommend to the parties that the LBE or business be removed from the LBE. (v) The Grievance Board will take such action as necessary or advisable to preserve the confidentiality . of grievances and the responses, deliberations and ~ z.ida TOTAL 2009-2013.12.9 21 70452944.2/10707537 proceedings with respect thereto. The Grievance Board will make written reports to the Company and to the City as to their findings, and the Company and the City shall thereafter meet to discus,s, if necessary, what, if any, correetive action should be taken. ;. ( g) ~ i 7 During the tax years 2 0 0 9 through 2 0~13 , the Company agrees to submit on a semi-annual basis a report ~ , providing the information specified in Section l2 (g) ~ii) , , (iii), and (iv} with respect to the hiring of qualified Port Arthur residents by the Company and its major prime contractors and the retention of LBE's by the Company and by its major prime contractors, as the same relate to the ~ ~ property described in Attachment "A". (ii) With respect to the hiring of qualified . Port Arthur residents by the Company, such report shall set forth the following information: • • Total number of new hires by zip code • Total number of new hires • Total number of applicants disqualified by reason of not meeting the:Company's minimum . hiring standards ~for example, disqualified by reason of drug screening, background check, etc.) ~~ ~ • Total number of appliCants extended an offer • Total number of applicants completing the , interview process z.ida TOTAL 2009-2013.12.9 22 70452944.2/10707537 -, • Total number of applicants invited to interview • Total number of appliCants with satisfactory scores on in-house assessments • Total number of applicants invited to take ~ ~ in-house assessments • Total number of applicants meeting minimum . qualif ications for the specif ic positions (education/experience) • Total number of applications received for n. announced positions , ~ (iii) With respect to the hiring of qualified ~ . Port Arthur residents by the Company's major prirne contractors, such report shall set forth the following ~ , ' inf ormat ion : ~ • Number of new hires by zip code , • Total number of new hires ~ • Total~number of applicants extended an offer ~ Such other information listed in Section 12 ~g) ( ii ) above as is reasonably available ~ from the major prime contractors . (iv) With respect to the hiring of LBE's, such report shall set~forth the following information: • Number of LBE's that are included on the , Company's and on its major prime - contractor's bidders 1'ists ~ , • Number of LBE's that were invited to bid on ~ providing services and goods for the Company . and for its major prime contractor z.ida TOTAL 2009-2013.12.9 23 70452944.2/10707537 1 ~ _ r • Total dollar amount of contracts awarded to LBE' s . • Number of contracts awarded to LBE's (v) The information provided by the Company to the City in any such report shall be and remain ~ confidential. - (h7 The City and the Company.agree, in conjunction . with other companies that have entered into industrial district agreements with the City, to set up an advisory . board to implement the programs goals and objectives for the LBE program. The advisory board ~will meet as needed and will be faci.litated by an outside source (Lamar State . College of Port Arthur or other mutually agreeable party). The facilitator will~ be paid a stipend which shall be ' prorated equally among the parties to the industrial district agreements, . ~ Section 13. Compliance, Monitor. The City reserves the right to hire or contract for a monitor to inspect the , Company's records and hiring practices in accordance with this Agreement so as to verify whether the Company has Complied and will continue to comply with this Agreement. , All inspections will be rnade at mutually agreeable times and will only be conducted in such manner as to not unreasonably interfere with the Company's safety and z.ida TOTAL 2009-2013.12.9 . 24 70452944.2/10707537 ' security standards and rules. All inspections will be made ~ ~ with one or more representatives ,of the Company present, . and any information provided by the Company to any such monitor shall be and remain confidential; provided, howe~rer, that such monitor may .make reports to the City provided that any data report~d is provided in the ~ aggregate and does not identify any individual or include ~ , an~r information which would tend to make the identity of any individual ascertainable. The Company may require any such monitor to execute a confidentiality agreement before making any records or other information available to such monitor. ' , , Section 14. Undocumented Workers. The Company certifies that they will not knowingly employ an ``undocumented w~rker" which means an individual who, at the _ ;^ time of employment, is not ( i) lawfully admitted for ~ ~ permanent residence to the United States, ~ii) a temporary resident lawfully permitted to be employed in the United States, or (iii) authorized under law to be employed in , , ~ ~ that manner in the United States. The Company acknowledges that it has reviewed Chapter 2264, Texas Government Code, and hereby affirmatively agrees- to repay the amount of any \ ~ incentive with interest at the rate of ten percent (l0a) per ~annum, not later than the 12Oth day after- the date the . ` ~ z.ida TOTAL 2009-2013.12.9 25 70452944.2/1fl707537 City notifies the Company of a violation. . The Company , acknowledges the City may bring a civil action to recover any amounts owed under this Chapter,,, and further ; acknowledges that the City may recover court costs and reasonable attorney's fees incurred in bringing an action ,~ ., - . u~der Section 2~64.101, Texas Government Code. Upon learning that any "undocumented worker" is improperly retained by~one of its contractors or subcontractors at its faCility on the land described on Attac3~ment "A", the ~ Company will promptly report same to the City.~ Section 15. Property Tax Information; Credits and Refunds. With respect to the land, improvements, un~its, equipment, inventor~r and all other property located on such land, as described in Attachment "A", for the tax years 2009 through 2013, the Company will, to the extent such property has not been annexed by the City, provide the Director of Finance of the City with copies of: • each notice of appraised value received by , the Company from the Jefferson County Appraisal District with respect to such property; . ~ any notice of protest filed by the Company with the Jefferson County Appraisal Review Board ("ARB") with respect to such property; r • any informal settlement or final ARB order determining protest with respect to such property; a.. ~ z.ida TOTAL 2009-2013.12.9 26 70452944.2/10707537 • any pleadings filed by the Company as a , petition for review of an order determining protest of the ARB with respect to such ~ property; and ~ any settlement, final judgment or other final disposition on appeal or otherwise of any such lawsuit. .- Pending final determination of any tax protest filed ~y CP~ with the Jef f erson County Appraisal Review Board, or ~- ~ ~ appeal thereof , CPC shall pay to City, on October 15th of -.. each year, the amount calculated based upon the value of the property reflected on the most recently adopted ~ appraisal roll prepared by or for Jefferson County Appraisal District and as further delineated in Section 1 of this Agreement . If the f inal determi'nation of a protest or an appeal reduces the value of the property after CPC has tendered payment to the City hereunder, CPC's liability hereunder shall be recalculated based on the final determination of value, and the City shall, af ter the f inal determination of such pr,otest or appeal, either credit toward future "In Lieu of Tax" agreements or refund to CPC the difference b~tween the amount actually paid hereunder and the amount for which the CPC is determined to be liable, without interest. Under no circumstances shall ,. o there be a-refund or a credit of more than ten (10 0) of any "In Lieu of Tax" payment made. z.ida TOTAL 2009-2013.12.9 27 70452944.2/10707537 Section 16. Electrical Usage. The Company will provide the City with information as to the electrical , ~ consumption from Entergy or~ from any other electric utilities, transmission and distribution utility, municipally owned utility, electric cooperative, or from any other source, as well as all metering locations that , service the area ~ described in Attachment "A". The . ~ _ , information provided by the Company to the City regarding such electrical consumption and metering locations shall be held confidential by the City. Section 17. Notice of Default. Notwithstanding anything herein to the contrary contained, in the event of i any breach by the Company of any of the terms or conditions of this Ag~reement, the City shall give the Company not less L than five ~ 5) business days' written notice, specifying the nature of the alleged default, and manner in which the alleged default may be satisfactorily cured. Thereafter, the Company will be afforded a reasonable ~time ~but in no event less than 60 days) within which to cure the alleged default. Nevertheless, time is of the essence on the payment schedule for the "in lieu of tax" payments on October' 15th of each year . If the Company does not pay the "in lieu ~of tax" ayment on October 15th of each year, the p f City can immediately Commence annexation proceedings and . .^ z.ida TOTAL 2009-2013.12.9 28 70452944.2/10707537 sue for all damages provided for herein. In ~the case of ~ , such a suit, and to encourage timely payments, the City can _ seek 1000 of all~monies that the City would have received , ~ from the ~ompany if it been within the corporate limits, which include 1000 of all taxes, building permits, sales or use taxes, and all franchise fees on elect~ical usage~, . interest and penalty thereon, attorney's fees, and court ~ costs. , Section 18. , ~ Entire Agreement. This ~greement ~ constitutes the `entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior understandings or oral or written agreements between the parties respecting such subject matter, except as otherwise provided in the instruments referenced herein. This Agreement may be amended or~ly by written instrument signed by all of the parties hereto. Section 19. Severability. If any term or provision in this Agreement~, or the application thereof to any person or circumstance, shall to any extent be held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unen~orceability shall not affect any other provision of this Agreement or the application thereof, , which can be given effect without the invalid or unenforceable provision or application, and the parties z.ida TOTAL 2009-2013.12.9 29 70452944.2/10707537 agree that the provisions of this Agreement are and shall be severable. Payment of the "in lieu of tax" payment is an essential part of this Agreement. Section 20. Remedies Cumulative. Except as other- Section 22. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an , original, and all of which taken together, shall constitute but one and~the same instrument. wise expressly provided herein, all rights, privileges, and remedies afforded the parties by this Agreement shall be deemed cumulative ~and not exclusive, and the exercise of any or more of such remedies shall not be deemed to be a . waiver of any other right, remedy, or privilege provided ,. for here~in or available at law~or in equity. ~ --; Section 21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of r ~ the State of Texas. This Agreement is to be performed in Jefferson County, Te~as. Section 23. Authority. By acceptance of this Agreement and/or benefits conferred hereunder, the Company represents and warrants that its undersigned agents have complete and unrestricted authority to enter into this Agreement and to obligate and bind the Company to all of , the terms, covenant:s and condit'i~ns contained herein. 30 _~ ~ z.ida TOTAL 2009-2013.12,9 70452944.2/10707537 ., Section 24. Notice. Any notiCe provided for in this Agreement shall be given in writing to the parties hereto by certified mail, return receipt requested, addressed as follows: ~ 31 ~ . .: ~ TO CITY: City Manager CITY ~OF PORT ARTHUR 444 4th St . Port Arthur, TX 77640 WITH A COPY T0: TO COMPANY: TOTAL PETROCHEMICALS USA, INC. City Attorney CITY OF PORT ARTHUR 444 4th St . ~ Port Arthur, TX 77640 409) 983-8126~ 409) 983-8124 / Section 25. Term of Agreement. This Agreement is _ effective the 1st ~~day of January, 2009, and shall expire on ~ the 31st day of December,~2013, unless extended by the City of Port Arthur, as delineated in Section 5. Section 26. Company Obligations. Notwithstanding anything contained herein to the contrary, the Company shall in no event be obligated hereunder (i) to amend or otherwise change, or attempt to amend or otherwise change, any agreement to which the Company is a party as of the z.ida TOTAL 2009-2013.12.9 70452944.2/10707537 date hereof, or tii) to hire or retain any person, or to award any contract for materials, supplies, equipment or services to any vendor, supplier, professional, contractor or subcontractor, unless, in the Company's sole discretion, (A7 such person is qualified, is willing to perform the , work, and satisfies all of the Company's normal standards for employment, and (B) such vendor, supplier, professional, contractor or subcontractor is qualified, financially sound, has an adequate safety record, is ~ willing to perform the work, or provide the matierials or services, in the time required and in a competitive manner, ~ and is the lowest qualified responsive bidder who meets all the applicable bid specifications. ~ 32 z.ida TOTAL 2009-2013.12.9 ~70452944.2./10707537 , ~ ~ SIGNED AND AGREED to on the day of ~ , 2008. . TOTAL PETROCHEMICALS USA, INC. . BY : ~ ACKNOTi~EDGMENT STATE OF TEXP,S ~ , ~ COUNTY OF JEFFERSON ~ ~ BEFORE~ ME, the undersigned Notary Public, on this day personall~ appeared , known to me to be the person whose name is ascribed to the ~ foregoing instrument, and acknowledged to me that he executed the same as the act and deed of TOTAL PETROCHEMICALS USA, INC. for the purposes and considerations therein expressed, and the capacities therein stated. ~~ GIVEN UNDER MY H AND AND SEAL OF OFFICE, THIS THE day of , A.D.~, 2008. NOTARY PUBLIC, STATE OF TEXAS , .. , - ~ ~ z.ida~premcor_2009.11.4 33 ~ S I GNED AND AGREED t o on t he day o f ~ , 2008. CITY OF PORT ARTHUR, TEXAS : BY: Stephen Fitzgibbons C i t~r Manage r ACKNOWLEDGMENT STATE OF TE~P,S ~ ' ~ COUNTY OF JEFFERSON ~ BEFORE ME, the undersigned Notary Public, on this day personally appeared Stephen Fitzgibbons, City Manager of the City of Port Arthur, known to me to be the person whose name is as~ribed to the foregoing instrument, and ~ acknowledged to me that he executed the same as the act and deed of the City of Port Arthur, for the purposes and considerations therein expressed, and the capacit~ies ~ therein stated. . GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE day of , A.D., 2008. NOTARY PUBLIC, STATE OF TEXAS ~ , . ~ . ~ ~ ~ ~ z.ida TOTAL 2009-2013.12.9 34 70452944.2/10707537 ~ LIST OF ATTACHMENTS , • "A" ~ Area of land •"B" Description of owners of property z.ida TOTAL 2009-2013.12.9 35 ~ 70452944.2/10707537 ~ \ , ATTACHMENT "B" ' ~ TOTAL PETROCHEMICALS USA, INC. owns all the land and ~ improvements as delineated ~.n Attachment "A" i z.ida TOTAL 2009-2013.12.9 70452944.2/10707537 36