HomeMy WebLinkAboutP.R. 14973: TOTAL PETROCHEMICALS USA, INC.interoffice
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark Sokolow, City Attorney ~,~.~~' ~r~~'~,,,_,_,-
Date: December 12, 2008 / >
Subject: P. R. No. 14973;
Special Council Meeting December 15, 2008
Regular Council Meeting December 16, 2008
Attached is P. R. No. 14973 authorizing the City Manager to
execute an Industrial District Agreement with TOTAL Petrochemical
USA, Inc. we received the latest draft at 4:47 p.m. on Friday,
December 12, 2008 and we are sti1T_ reviewing it.
MTS:ts
Attachment
cc: Director of Finance
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P. R. No. 14973
12/09/08 is
RESOLUTION NO.
A RESOLUTION AUTHORIZINC~ THE CITY MANAGER TO
EXECUTE AN INDUSTRIAL D]:STRICT AGREEMENT WITH
TOTAL PETROCHEMICALS USA, INC.
WHEREAS, the City Council of the City of Port Arthur deems it
in the best interests of the citizens of Port Arthur to enter into
an "In Lieu of Tax" Agreement witYi TOTAL Petrochemicals USA, Inc.
NOW THEREFORE, BE IT RESOLVEI) BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. That the fact: 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
Petrochemicals USA, Inc., in substantially the same form as attached
hereto as Exhibit "A".
Section 3.
That TOTAL Petrochemicals USA, Inc. shall sign
and return the Agreement by December 23, 2008, or this Resolution is
null and void and the property described herein is annexed,
effective December 31, 2008 at 11:.59 p.m., as further delineated in
P. O. 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
A.D., 2008, at a Meeting of the City Council of
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the City of Port Arthur, by the following vote: AYES:
Mayor
Councilmembers
NOES:
MAYOR
ATTEST:
TERRI HANKS, ACTING CITY SECRETARY'
APPROVED AS TO FORM:
See City Attorney Memo
CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
CITY MANAGER
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EXHIBIT "A"
STATE OF TEXAS §
COUNTY OF JEFFERSON §
INDUSTRIAL DISTRICT AGREEMENT
WITH TOTAL PETROCHEMICALS USA, INC.
"DEEP CONVERSION PROJECT" (2009 TO 2021)
WHEREAS, in 2001, the City of Port Arthur (hereinafter
referred to as the "City") and ATOFINA Petrochemicals, Inc.
entered into an Industrial District Agreement for the
refinery for the payment of $:~, 250, 000 per year from ;?002
to 2008; and,
WHEREAS, the Industrial District Agreement was
approved by Resolution No. 01-301 and expires December 31,
2008; and,
WHEREAS, ATOFINA Petrochemicals is now known as TOTAL
PETROCHEMICALS USA, INC. (the "Company"); and,
WHEREAS, it is contemplated that TOTAL PETROCHEMICALS
USA, INC. will enter into a new five year Indust=rial
District Agreement as it pertains to its existing refinery
that provides for a payment of $3,600,000 on January 1,
2009 and annual payments thereafter for five years (2009-
2013), as delineated in the Industrial District Agreement
that was approved by Resolution. No. and,
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WHEREAS, Sabina Petrochemicals, Inc., BASF Corporat:ion
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
Resolution No. 02-25 which provides for payments of
$252,000 on September 1St of each year from 2005 to 2008 and
$315,000 on September 1St of each year from 2009 to 2012;
and
WHEREAS, TOTAL Petrochemicals USA Inc and the City
have agreed to enter into an Cndustrial District Agreerent
for an expansion denoted as t:he "Deep Conversion ProjE.ct"
on the property described in Attachment "A" and as furt:her
delineated in Attachment "B"; and
WHEREAS, the City Council is concerned as to the
unemployment rate of Port Arthur residents; and,
WHEREAS, the City Council is interested in maximi:,ing
job opportunities and contracting opportunities for ]?ort
Arthur residents and Port: Arthur businesses and
contractors, and the City Council is interested in wor]{ing
with industry and Lamar State College-Port Arthur to obtain
sound information on current hiring and procurement
efforts, including results, a:nd working with industry to
try to increase employment opportunities for Port Arthur
residents and procurement for Fort Arthur businesses; and
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WHEREAS, the City Counc:il 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
WHEREAS, the Company owns the land described in
Attachment "A"; and
WHEREAS, the City and the Company desire to enter ~_nto
an Industrial District Agreement with respect. to the "Deep
Conversion Project" on 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 consideration for this Agreemesnt;
and
WHEREAS, this Agreement .Ls authorized
42.044 and 212.172 Local Government Code,
Code Annotated and Article 1, Section 5
Charter, and the parties agree that the fol:
reasonable, appropriate, and not unduly
business activities; and
under Sections
Vernon' s TE~XaS
of the Cii~y' s
Lowing terms are
restrictive of
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WHEREAS, all parties fired that this Agreement, as
delineated herein, is beneficial to each party.
NOW, THEREFORE, in consideration of the promises and
the mutual agreements of the parties contained herein, the
City and the Company agree with each other as follows:
Section 1. Pa yments by the Company.
(a) For each of the tax years 2012 through 2021, the
Company shall pay to the City the amounts delineated in
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 pa.y to the City the following
as it pertains to the new improvements delineated as the
"Deep Conversion Project".
Date Company's payments to City
October 15, 2009 $0
October 15, 2010 $0
October 15, 2011 $0
October 15, 2012 $500,000
October 15, 2013 $930,000
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October 15, 2014 ;1,450,000
October 15, 2015 ,~1 950 000
October 15, 2016 ;2,500,000
October 15, 2017 ;3,100 000
October 15, 2018 :3,650 000
October 15, 2019 :?4,175 000
October 15, 2020 :4,250 000
October 15, 2021 :?4,250,000
(c) The payments as deli~aeated in this Agreement are
in addition to the payments received from Sak~ina
Petrochemicals, Inc., BASF Corporation, Inc. and ATOF?INA
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.
(d) The payments as delineated in this Agreement are
in addition to the payments received or to be received jErom
TOTAL PETROCHEMICALS USA, INC. as per the Industrial
District Agreement as it pertains to the existing refinery
and that was approved by Resolution No.
(e) 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, ei1ther
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directly or indirectly, to the City. Except as delineated
in Section 15, once an "In Lieu of Tax" payment is paid. to
the City, the City shall not refund or credit any of ;aid
payment.
Section 2. Certain Emergencies. If reque~~ted
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 role
discretion, assist in providing an evacuation route and
traffic control in the case of a fire or a chemical relE~ase
at the Company's facilities located in the Cit;y'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 flooding on
adjacent property. The Company shall also put in placE~ an
evacuation plan for the Company's facilities located on the
land described on Attachment "A" that is consistent with
industry standards and/or as is required by applicable
federal and state laws and tY:~e health and safety law: of
the City of which the Compar.~y has been notified by the
City. The Company shall employ or provide sufficient
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primary fire suppression res~?onse, as wel:1 as primary
response for the control anal abatement of chemical
releases. The Company shall provide the City's Fire Chief
and Police Chief with Emergency Response Plans for any
plants, refineries, chemical o~gerations or other hazardous
operations that take place on the land, as described in
Attachment "A". If there is a fire and the City is
requested to provide initial and primary (as opposed to
back-up) fire suppression services or if a clean up is
required of the City, the Company will pay to the City the
costs and expenses incurred k>y 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 Ci1~y's
Emergency 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 la.w.
Section 4. Annexation for Health, Safety and
Welfare Reasons. It is specifically stipulated that
nothing in this Agreement will in any manner limit or
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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 genE~ral
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, 2021 wil:1 not be made
for revenue purposes only.
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 Section 5 or the preceding Section 4,
(i) the Company will not bE~ required to make furi~her
payments under this Agreement for any calendar year
commencing after annexation with respect to the property so
annexed, but shall neverthele~;s be obligated, to make :Full
payments for the year during vahich such annexation becomes
effective if the annexation becomes effective after January
1St of said year, and (ii) the Company shall not be required
to pay ad valorem taxes to they City for the same period of
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time they have already paid a.n "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
from annexing such property and. if the partie:~ 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 succe:~sors or affiliates own :such
property, it will continue to pay to the City the "in ]_ieu
of tax" payments delineated in Section 1 unti:L December 31,
2021, and will thereafter continue to annually pay the City
an "in lieu of tax" payment amount equal to seventy-f:ive
percent (75%) of the amount of property taxes that the
Company would have paid to tYie City with respect to the
taxable portion of the land, improvements, un_Lts,
equipment, inventory and all other property located on :such
land, as described in Attachment "A", as if they had been
located within the corporate limits of the City of ]?ort
Arthur. Payments will be due on October 15th of each year.
In the event the City is prevented from annexing :such
property described in Attachment "A" in the circumstances
described in the first sentence of this Section 5, 1then
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
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Agreement and that the Company will continue to annually
pay the City "in lieu of tax" payments at the seventy-f`ive
(750) rate, as described in the immediately preceding
sentence, for successive 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, "taxak~le value" means the taxable
value as determined by the Jefferson County Appraisal
District in appraisal rolls after the completion of all
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
Attachment "A", excluding the: value of exempt pollui~ion
control devices and any other exempt property, owned or
leased by the Company and located within the extra-
territorial jurisdiction of the City, as described in
Attachment "A". Such "taxab:Le value" also includes the
taxable value on such rolls of any property that is located
in a foreign trade zone or iri 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, 2021, to
annex the property described i.n Attachment "A" or to enter
into negotiations with the Company regarding an agreement
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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 ]Located on the
land, as described in Attachment "A", are described in
Attachment "B". The City reserves the right to annex ghat
tract or parcel with the minimum required adjacent area, as
per Chapter 43 Local Governmenl~ Code, if the owners or the
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 jErom
paying the other owners' or lessees' "in lieu of 1~ax"
payment to prevent annexation by the City. If the City
annexes a tract or tracts, such annexed tract or tr<~cts
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 by t:he same ratio as the taxable
value of the deleted property :bears to the taxable value of
the property prior to any such deletion.
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Section 8. Assignment; Binding Effect. If the
Company desires to assign this Agreement to arty person, the
Company shall provide written notice of such assignment to
the City and shall receive the written consent of the City
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
Council, the Company shall be relieved of its obligat_ons
under this Agreement to the extent that the assignee
expressly assumes such obligations. Subject to the
foregoing, this Agreement shal7L inure to the benefit of and
be binding upon the parties hereto and their respective
successors and assigns.
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 specific
performance of this Agreement.
Section 10. Inspections. The Company shall allow a
reasonable number of authorized employees and/or
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representatives of the City wlzo have been designated and
approved by the City Manager, City Council, or Mayor to
have access to the land described in Attachment "A" during
the term of this Agreement to inspect the plants thereon
and any improvements thereto t:o determine compliance with
the terms and conditions of this Agreement. All ~;uch
inspections will be made at mutually agreeable times and
will only be conducted in sucri manner as to not interfere
with the Company's safety standards and security standairds
and rules. All such inspections will be made with one or
more representatives of the Company and in accordance with
the Company's safety standard~~. The Company may require
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 :Port Arthur Industrial Group
during the life of this Agreement 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 mento:ring
programs and projects for the training of: Port Arthur
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residents for regular full-time jobs in the Port Arthur
area.
Section 12.
Port Arthur: Local Business Enterprise
Program.
(a) The City recognizes t=hat proactive steps must be
taken to help ensure that :Port Arthur local busir.~ess
enterprises thrive and continue to benefit our community
economically and socially. The goals of the Port Arthur
Local Business Enterprise Program are to create a program
that promotes spending by companies that have industrial
district agreements with qualified Port Arthur local
business enterprises as well ais to increase the diver:~ity
of Port Arthur businesses with which such companies pro<:ure
goods and services so that thE: pool of such businesses, is
representative of the business community at large.
(b) As used in this Section 12:
(i) "LBE" means a Port Arthur business
(including, but not limited to, a Port Ax-thur minority
and/or women owned business enterprise ("MIn1BE"), 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
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not include any Port Arthur bu~~iness 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
actually performing, managing,, or supervising the work
involved. A business is not performing a "Commercia.lly
Useful Function" when its role is limited t.o that of an
extra participant in a transaction, contract, or profit
through which funds are passed in order t.o obtain the
appearance of LBE participation, e.g., a sham transaction.
(iii) "good faith efforts" mean: commercially
reasonable efforts to further qualified LBE participation
or otherwise satisfy the requirements contained in this
Section 12 which, by their scope, intensity, and
appropriateness to the objE~ctive, can reasonably be
expected to fulfill the program requirements.
(c) 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 follow::
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(i) arranging solicitations, times for
presentation of bids, quantities, specifications, and
delivery schedules in ways that. facilitate qualification of
LBE participation, 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
opportunities (e. g., facilitating the .inclusion of
qualified LBE's on the Company's bidder list); and
(iii) helping support:
• an educational program to inform
qualified LB:E's of opportunities and 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, ~T.T.C.A., after the City has
provided reasonable advance notice to the Company 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.
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(d) Through appropriately promulgated pY-ocedures, the
City, using an independent source (Lamar State College of
Port Arthur or other mutually agreeable party), shall
certify as an LBE any businE~ss that meets; all of the
following criteria:
• The business is financially and operationally
independent from, <~nd operates at. arm's length
to, any other business.
• The business has been in operation for at least
six months within the City.
• The business is a for-profit enterprise.
• The business performs a Commercially Useful
Function.
• The business maintains its principal place of
business at a fixed, established commercial
address (and not a temporary or movable office,
a post office box, or telephone answering
service or a temporary short-term lease) ghat
is within the bour.~daries of the City and ghat
provides all of i~he services f'or which LBE
certification is sought, other than work
required to be performed at a j ob si_te .
Suppliers are required to maintain tYieir
principal place of business within the
boundaries of the City.
• The business can be expected, to satisfy
qualifications s~>ecified by the Company,
including, but riot limited t:o, financ:ial
viability, an adequate safety record, employees
that can pass background and drug testing
checks, and the business's ability to comply
with applicable local, state and fedE~ral
regulations and licensing requirements.
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(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 F?orce Commission
• Lamar State College of Port= Arthur
• Port Arthur ISD
• Sabine Pass ISD
• Digital Wor}c Force
• Any of the following who have provided
written notice to the City stating that
it wants i~o receive notification of
such job openings and identifying its
mailing anal e-mail addresses, and the
City has provided the Company with a
copy of such written notification:
Port Arthur labor unions
Associations representing historically
underutilized segments of the
population :in Port Arthur
The Company will also request that its
contractors and subcc>ntractors consider notifying
the above entities of their respective job
openings.
(f) The Company will make good faith efforts:
• to have their large prime contractors obtain
qualified LBE bids on contracts subject to
this Agreement;
• to arrange subcontracts by size and type. of
work to improve the opportunities for LF3E' 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
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substantial inconvenience, or where there
would be a material sacrifice i.n operational
or construction efficiency;
• to hire qualified citizens of Port Arthur
for regular, fu1:1-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
College of Port Arthur or be another person mutually
acceptable to the City and the' Company. The head of the
Grievance Board will have the tie breaking vote if neecled.
The head of the Grievance Boa~:d will serve as facilitaitor
and will receive a reasonable stipend for hip; 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 ghat
it sought to be employed by thE~ Company and was not givE:n a
due opportunity under standards set forth in the terms of
this Agreement.
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(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 oar other business, or its
designee, files two or more unfounded complaints of
business discrimination, the L:BE 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 re:~ponses, deliberations and
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 discuss, i_f necessary, what, if any,
corrective action should be taken.
(g) (i) During the tax 'years 2009 through 2021, the
Company agrees to submit on a. semi-annual basis a report
providing the information specified in Sect~Lon 12 (g) (.Li) ,
(iii), and (iv) with respect to the hiring of qualij`ied
Port Arthur residents by the Company and its major prime
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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 Attachments "A".
(ii) With respect t:o 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
• 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
qualifications for the specific positions
(education/experience)
• Total number of applications received for
announced positions
(iii) With respect 'to the hiring of qualif=ied
Port Arthur residents by the Company's major prime
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contractors, such report shall set forth the following
information:
• 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 1that are included on the
Company's and on its major prime
contractor's bidders lists
• Number of LBE's that were invited to bid on
providing services and goods for the Company
and for its major prime contractor
• Total dollar amount of contracts awarded t:o
LBE's
• Number of contracts awarded to LBE's
(v) The information provided by t:he Company to
the City in any such report shall be and remain
confidential .
(h) The City and the Cc>mpany 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
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and will be facilitated by an outside source (Lamar State
College of Port Arthur or othe:r 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 :Eor a monitor t.o inspect the
Company's records and hiring ~>ractices in accordance with
this Agreement so as to verify whether they Company has
complied and will continue to comply with this Agreement.
All inspections will be made at mutually agreeable times
and will only be conducted in such manner as to not
unreasonably interfere with the Company's safety and
security standards and rules. All inspection: 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,
however, that such monitor may make reports to the City
provided that any data reported is provided in the
aggregate and does not identify any individual or include
any 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
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making any records or other information avai:Lable to such
monitor.
Section 14. Undocumented Workers. The Company
certifies that they will not knowingly employ an
"undocumented worker" which means an individual who, at the
time of employment, is not (i) lawfully admitted for
permanent residence to the Unit=ed 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 agree: to repay the amount of any
incentive with interest at thE~ rate of ten percent (1.Oo)
per annum, not later than the 120th day after the date the
City notifies the Company of a violation. The Com~>any
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
under Section 2264.101, Texas Government Code. iJpon
learning that any "undocumented worker" is improperly
retained by one of its contracl=ors or subcontractors at its
facility on the land described on Attachment "A", the
Company will promptly report same to the City.
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~--L- -
Refunds.
n 15. Property Tax Information, Credits and
With respect to the land, improvements, units,
equipment, inventory and all other property located on such
land, as described in Attachment "A", for t:he tax years
2009 through 2021, 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;
• any informal settlement or final ARB order
determining protest with respect to such
property;
• 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
by CPC with the Jefferson Country Appraisal Review Board, or
appeal thereof, CPC shall pay to City, on October 15tr` 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
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Appraisal District and as further delineated in Section 1
of this Agreement. If the final determination 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, after the final
determination of such protest or appeal, either credit
toward future "In Lieu of Tax" agreements or refund to CPC
the difference between the amount actually paid hereur.~der
and the amount for which the CPC is determined to be
liable, without interest. Under no circumstances shall
there be a refund or a credit of more than ten (10%) of any
"In Lieu of Tax" payment made.
Section 16. Electrical Usa e. The Company will
provide the City with information as to the electrical
consumption from Entergy or from any other elect;ric
utilities, transmission and distribution utility,
municipally owned utility, electric cooperative, or i=rom
any other source, as well as all metering locations ghat
service the area described in Attachment. "A". The
information provided by the Company to the City regarding
such electrical consumption and metering locations shal7L be
held confidential by the City.
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Section 17. Notice of Default. Notwithstanding
anything herein to the contrar;r contained, in the event of
any breach by the Company of an.y of the terms or conditions
of this Agreement, the City shall give the Company not less
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" payment on October 15th of each year, the
City can immediately commence annexation proceedings and
sue for all damages provided i°or herein. In the case of
such a suit, and to encourage tamely payments, the City can
seek 1000 of all monies that t=he City would have received
from the Company if it been vaithin the corporate limits,
which include 1000 of all taxes, building permits, sales or
use taxes, and all franchise fees on electrical usage,
interest and penalty thereon, attorney's fees, and court
COStS.
Section 18. Entire Agreement. This Agreement
constitutes the entire agreement of the parties with
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respect to the subject matter hereof and supez•sedes 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 only 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 unenforceability 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
agree that the provisions of this Agreement are and sYiall
be severable. Payment of the "in lieu of tax" payment is
an essential part of this Agreement.
Section 20. Remedies Cumulative. Except as other-
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 f,e a
waiver of any other right, rE.medy, or privilege provided
for herein or available at law or in equity.
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Section 21. Governing Law. This Agreement shall be
governed by and construed in accordance witYi the laws of
the State of Texas. This Agreement is to be: performed in
Jefferson County, Texas.
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.
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, covenants and conditions contained herein.
Section 24. Notice. Any notice provided for in
this Agreement shall be given in writing to the parties
hereto by certified mail, return recei~>t requested,
addressed as follows:
TO CITY:
City Manager
CITY OF PORT ARTHUR
444 4th St .
Port Arthur, TX 77640
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TO COMPANY:
TOTAL PETROCHEMICALS USA, I:NC.
29
WITH A COPY TO:
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, 2021, 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 pax-ty as of the
date hereof, or (ii) 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 tYle Company's sole discretion,
(A) 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 materials or
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services, in the time required and in a competitive manner,
and is the lowest qualified re~~ponsive bidder who meets all
the applicable bid specifications.
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SIGNED AND
AGREED to on the __ day of
2008.
TOTAL F?ETROCHEMICALS USA, INC.
BY:
ACKNOWLEDGMENT
STATE OF TEXAS ~
COUNTY OF JEFFERSON ~
BEFORE ME, the undersigned Notary Public, on this day
personally 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 HAND AND SEAL OF OFFICE, THIS THE
day of A.D., 2008.
NOTARY PUBLIC, STATE OF TEXAS
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SIGNED AND AGREED to on the _ day of _ _,
2008.
CITY OF PORT ARTHUR, TEXAS
BY:
Stephen Fitzgibbons
City Manager
ACKNOWLEDGMENT
STATE OF TEXAS §
§
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 wY:~ose
name is ascribed 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 capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
day of A.D., 2008.
NOTARY PUBLIC, STATE OF TEXAS
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LIST OF ATTACF~NTS
"A" Area of land
"B" Description of owners of property
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ATTACHMENT "B"
Description of the units to be built as a result of
the "Deep Conversion Project".
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ATTACfIMENT "C"
TOTAL PETROCHEMICALS USA, INC. owns all the land
improvements as delineated in Attachment "A"
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and
36