HomeMy WebLinkAboutPR 14973 INDUSTRIAL DISTRICT AGMT. W/TOTAL PETROCHEMICALSinterof f ice \
~
RAN
MEM
To: Mayor, City Council, and City Manager
From : Mark Sokolow, City Attorney ~----- ~
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 Agree~ent with TOTAL Petrochemical
USA, Inc. We received the latest draft at 4:47 p.m. on Friday,
December 12, 2008 and we are still reviewing it.
MTS:ts
Attachment
,
CC: Director of Finance
~
z.pr14973_memo
P. R. No. 14973
12/09/08 ts
RESOLUTION N0.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO ~'
EXECUTE AN INDUSTRIAL DISTRICT AGREEMENT WITH
TOTAL PETROCHEMICALS USA, INC.
WHEREAS, ~he 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 with TOTAL Petrochemicals USA, Inc.
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
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 vo~.d and the property described herein is annexed,
~
effective December 3l, 2008 at 11:59 p.m., as further delineated in
P. 0. No. 5925.
1
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 ~
z . pr14 973
, A.D., 2008, at a Meeting of the City Council of
the City of Port Arthur, by the following vote: AYES:
Mayor
Councilmembers ~
,
,
~
,
' {,~ ~'~ a.-~ ~ .
• ... . ~_J'._. ,... .
NOES:
, ~
~ ' ~ ' .~ ~ .. .
'
\
MAYOR
ATTEST:
TERRI HANKS, ACTING CITY SECRETARY
APPROVED AS TO FORM:
, See City Attorney~Memo
CITY ATTORNEY ~
APPROVED FOR ADMINISTR.ATION:
CITY MANAGER
z.pr14973
~ l
" „
`~
STATE OF TEXAS
COUNTY OF JEFFERSON
~
§
~ .
INDUSTRIAL DISTRICT AGREEMENT
_ WITH TOTAL PETROCHEMICALS USA, INC.
"DEEP CONVERSION PROJECT" (2009 TO 2021) ~ , ,
, . - ,~ ~ ,
. . , .. ~ ,.
; ,
WHEREAS, zn 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 $2, 250, 000 per year from 2002
to 2008; and,
~
~ WHEREAS, the Industrial District Agreement was
a
approved by Resolution No. 01-301 and expires December 33.,
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 Industrial
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 Corporation
and ATOFINA Petrochemicals, Inc. entered into an Industrial
~
District Agreement for a new butadiene eXtraction unit,
olefins conversion uni~t ~and alkylate unit as approved by
Resolution No. 02-25 which ~ provides for payments of ~
~~ 252 000 on Se~~ tember lst of e~ach year from 2005 to 2008 and ~~
$ , p .
, .
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 Industrial District Agreement
for an ex ansion denoted as the "Deep Conversion Project"
, p
on the pr~perty described in Attachment "A" and as further
delineated in Attachment "B"; and
WHEREAS,. the City Council is concerned as to the
~
unemployment rate of Port Arthur residents, and,
WHEREAS the Cit Council is interested in maximizing
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: job opportunities eand 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 results, and working with industry to
tr to increase employment opportunities for Port Arthur
Y
residents and procurement for Port Arthur businesses; and
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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 opportuni;ties 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 into
an Industrial District Agreement with respect to the "Deep
Conversion Proj ect" 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 Agreement;
and
WHEREAS, this Agreement is authorized
42.044 and 212.17~2 Local Government Code,
, r
Code~~Annotated and ~Article 1, Section ~5
Charter, and the parties agree that the fo~:
reasonable, appropriate, and not unduly
business activities; and
under Sections
Vernon's Texas
~of the City's
Lowing terms are
restrictive of
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WHEREAS, all parties find that this~ Agreement, as
delineated herein, is beneficial to.each part~.
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. Payments by the Company. .-
(a) For each of the tax years 2012 thraugh 2021, the
Company shall pay to the City the amounts delineated in
this Section l 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 ~rear, i.e., January l through December 31.
,,
(b) The Company shall pay 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
~ctober 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
ti
October 15, 2017 $3,100,000
October 15, 2018 $3,650,000
October 15, 2019 $4,175, 00~ ~ .: ~ . ~
October 15, 2020 $4,250,000
October 15, 2021 $4,250,000
~c) The payments as delineated in this Agreement are
~ in addition to the payments received~ from Sabina
.Petrochemicals, Inc., BASF Corporation, Inc. and ATOF~NA
Petrochemicals, Inc. as per the Industrial. District
Agreement that. was entered into with Sabina Petrochemicals,
Inc., BASF Corporation, Inc. and ATOFINA Petrochemicals,
i
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 from
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, either
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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 said
~
payment.
Section 2. Certain Emergencies. If requested
~ ,
orally or ~in ~writ~ing by the Company, the City's Fire
,
Department may, in its sole discretion, provide back-up
Fire Suppression Support as determined by the Cit~'s Fire
Chief, and the City's Police Department may, in its sole
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 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 the health and safety laws of
the City of which the Company has been notified by the
Cit~. The Company shall employ or provide sufficient
~
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primary fire suppression response, as well as primary
response for the control and 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 operations 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 in~itial and primary ~as opposed~ to ~ ~
~ back-up) fire suppression serv~ices or if a clean up is
~
required of the City, ~he Company will pay to the City the
costs and expenses incurred by the City and any of its
departments or of any of its affiliated providers, i.e.,
~
- arnbul.ance 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, Po1iCe Chief, and the City'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 .
communit or that exceed permissible exposure limits under
Y
applicable state and federal law. .
~ ~
Section 4. Annexation for Health, Safet and
Welfare Reasons. It is specifically st~ipulated 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 facilit,ies during the period of the
A reement if the City should determine that~such annexation
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is reasonably necessary to promote and protect the general
health, safety, and welfare of the persons residing within
or ad'acent to the Cit , provided however, that ~the City .~
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agrees that 'such annexation for the land described in _~~
Attachment "A" prior to October l, 2021 will not be made _
for revenue purposes only.
Section 5. Annexation Due to Legislative Action.
Notwithstandin the rovisions of Section 4, the parties -'
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agree and Consent that the City may annex the land
described in AttaChment "A" if legislation is enacted which
lirnits or restricts the authority of the City to annex all
. or art of said land and improvements. In the event of
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annexation under this Section 5 or the preceding Section 4,
i the Com any will not be required to make further
( ), p
payments under tl~is Agreement for any calendar year
commencing after annexation with respect to the property so
ut shall nevertheless be obligated to make full
annexed, b .
a ents fo~ the year during which such annexation becomes
p Y~
ef f ective if the annexation becomes ef f ective af ter January
lst of said year, and ( ii ) the Company shall not be required
to a ad valorem taxes to the City f or the same period of
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,
,
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time the have already paid an "in lieu of tax" payment
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with respect to the propert~r described in Attachment "A" to
this Agreement. If for any reason the City is prevented
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" a reement, the Company agrees that, for so long as
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it or its assi nees and successors or affiliates own such
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ro ert , it will continue to pay to the City the "in lieu
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of tax" a ents delineated in Section 1 until December 31,
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2021, and will thereafter continue to annually pay the City
"in lieu of tax" a ent amount equal to seventy-five
an p Ym
p~rcent (75a) of the amount of property taxes that the
Company would have paid to the City with respect to the
taxable portion of the land, improvements, units, -
equiprnent, 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 Port
Arthur. Pa ents will be due on October 15th of eaCh year.
Ym
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, then
ursuant to Sections 42.044 and 212.172, Local Government
p
Code the Com an agrees and consents that the City has the
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~ o tion in the Cit '~s sole discretion, to extend this
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, -
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Agreement and that t~e Company will continue to annually
pay~ the Cit~r "in lieu of tax" payments at the seventy-five
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, "taxable 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 pollution ~
,
control devices and an~r 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 "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 l, 2021, to
; .
annex the property described in Attachment "A" or to enter
into negotiations with the Company regarding an agreement
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~
10
concerning the payment by the Company of additional "in
1 ieu of tax" payment s f or f uture years . ~
Section 7. i~essees 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 that
tract or parcel with the minimum required adj acent area, as
per Chapter 43 Local Government Code, if the owners or the
lessees do not pay an "in lieu of tax" pa~rment f or its
interest in the land, improvements, units, equipment,
inventor , and all other propert~r located on the land, as
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,
descr~.bed in Attachment~ "A". ~Noth~ing contained herein
shall~ be ~construed to~prohi~it or prevent the Company from
paying the other owners' or lessees' "in lieu of tax"
nt to revent annexation by the City. If the City
payme p
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 Com any's total "in lieu of tax" payments under this
p
' e reduced b the sarne ratio as the taxable
Agreement will b y
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
Com an desires to assign this Agreement to any person, the
P Y
Company shall provide written notice of such assignment to
the City and shall receive the written consent of the City
. Council, b a duly adopted Resolution, which written
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consent will not be unreasonably withheld, delayed or
conditioned. The Company shall provide a description of
the assignee and such other informa~ion as is ~reasonably
~.
re uested to indicate that the assignee will operate the
q
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 obligations
under this A reement to the extent that the assignee
g
expressly assumes such obligations. Subject to tne
fore oin this A reement shall inure to the benefit of and
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be binding upon the parties hereto and their respective
sucCessors and assigns. ~
Section 9. Equitable Relief. It is agreea by tne
' s to this A reement that the Company and the City ,
partie g
~ have the ri ht to seek equitable relief; including ~pecific
, g
. performance of this Agreement.
Section 10. Inspections. The Company shall allow a
onable number of authorized employees ' and/or
reas .
_ ~
._.:.._~
-- ^
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representatives of the City who have been designated and
approved by the City Manager, City Council, or ~ayor 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 to determine compliance with
the terms and conditions of this Agreement. Al1 such
.~
~ ~ ins ections will be made at mutuall~~r agreeable times and
p
~ will only be conducted in such manner as to not interfere
with the Company's safety standards and security standards
and rules. Al1 such inspections will be made with one or
more represen~atives of the Company and in accordance with
the Company's safety standards. The Company may require
any person conducting such an inspection to execute a
confidentiality agreement before entering the Company's
fa~ilities. ~
Section 11. Port Arthur Industrial Grou . The .
Company shall, subject. to the Company's annual management
a roval, participate in the Port Arthur Industrial Group
pp
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
a rentiCeship; ~internship, education and/or mentoring
pP
~
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 1~2.
Port Arthur Local Business Enterprise
Pro ram. ~
(a} The City recognizes that proactive steps must be ,
taken to help ensure that ~ort Arthur local business
, . . ,.,
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 prornotes spending by companies that have industrial
district agreements with qualified Port Arthur; local
business enterprises as.well as ~to increase the diversity
of Port Arthur businesses with which 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 SeCtion 12:
,
(1) "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 certif ied as an LBE under the procedures and
~ criteria specified in Sec~ion 12~d), but suCh term shall
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not include any Port Arthur business that has ceased to be
so certified.
tii) "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) performi~ng 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 perf~rming a"Commercially ~~
Useful Function" when its role~ is limited to that~ of an ~
extra participant in a transaction, contract, or profit
through which funds are passed in order to obtain the
appearance of LBE participation, e.g., a sham transaction.
(iii) "good faith efforts" means commerCially
,
reasonable efforts to further qualified LBE participation
or otherwise satisfy the requirements contained in this
Section 12 which, by their scope,~ intensity, and
a ro riateness to the -objective, can reasonably~ be
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expeCted to fulfill the program requirements.
(c} ~'he 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:
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(i) arranging solicitations, times for
presentation of bids, quantities, specifications, and
delivery schedules in ways that facili.tate qualif ication of
LBE participation, except where it is not commercially
reasonable to do so without material added expense or
~
;- r
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 LBE'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, Te~as Government Code, V.T.C.A., af ter the City has
provided reasonable advance notice to the Company of the
meeting a~t which such prevailing wage is reasonably~ set and
afforded the~ Company an opportunity to be heard by the Cityi
Council on such matter at such meeting.
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16
(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 all of the
following criteria:
~ + The business is financially and operationally
independent from,~ and operates at arm's length ~
to, any other business. ~
~ ~
, , ,
• The buslness has been ~n op,eration 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 i.ts principal place of ~
~~ bus~~ines~s 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) that
is within the b.o~ndaries of ~the~ City and that
~ provides all of the services ~for which LBE
cer~tification is 'sought, ~other than work
~~ ~ requi~red to be performed at a job site.
~~ ~ ~ Suppliers are requ~~ired to ma~intain ~heir
~ rincipal place of ~ business within ~ the
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boundaries of the City.
• The business can be expected to satisfy
qualifications specified by the Company,
includin , but not limited to, financial
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viability, an adequate safety record, empioyees
that can pass background and drug testing
checks, and the business's ability to comply
with applicable local., state and federal
regulations and licensing requirements.
,
. ~ '':
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~ (e) The Company will notify ~in writing or by e-mail)
the f ollowing of j ab open~ings :
~ • City of Port Arthur
• The Port Arthur News
• Texas Work Force 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 that
it wants to receive notification of
such job openings and identifying its
mailing and 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,subcontractors 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 t,ype 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
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substantial inconvenience, or where there
would be a material sacrifice 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 Cornpany 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 needed.
~'he 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 sou ht to be employed`by the Company and was not given a
g
,
~ due o ortunity under standards set forth in the terms of
pp
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 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 pxogram
and the Grievance Board can recommend to the parties that
a
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 rievances and the responses, deliberations and
g
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, if 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
rovidin the information specif ied in Section 12 (g) ( ii ),
p g
( iii~ and ~ iv) with respect to the hiring of qualif ied
,
Port Arthur residents by the Company and its major prime ~
~ 20
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contractors and the retention of LBE's by the Company and
b its ma'or rime contractors, as the same relate to the
Y 7 p
~ ,
property descrlbed ln Attachment "A". ~
;
(ii) With respect to the hiring of qualified
1
Port Arthur residents by the Company, such report shall set
f orth the f ol lowing inf ormat ion : ~ -.~
~ • 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
ualif ications for the specif ic positions
q
(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
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
' f rom the maj or prime contractors ~ ~~ ~~ -
~
a
..
(iv) With respect to the hiring of LBE's, such
report shal l set f orth the f ol lowing inf ormat ion :
• Number of LBE's that 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 f or i~s maj or prime contractor
,
• Total dollar amount of contracts awarded to
LBE' s
• Number of contracts awarded to LB~'s
(v7 The information provided by the Company to
the Cit in an such report shall be and remain
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confidential. ~
th) The City and the Company agree, in conjunction
with other companies that have entered into industrial
dis~rict agreements with the City, to set up an advisory
board to implement the programs goals and objectives for
the LBE program. The advisory board ~vill meet as needed
z.ida TOTAL.2009-2021.12.9Expansion
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~
~
~ 22
and will be facilitated 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 parti~s to the industrial
district agreements.
Section 13. Compliance Monitor.- The City reserves
,
,
the right to hire or contrac~ f or 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 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 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,
however, that such mon~itor may make reports ~to the City
rovided 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 re~uire any
such monitor to execute a confidentiality agreement b~fore
~ -
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mak~ing any records or other information available 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 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 acknowledge~s
4
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 (10%)
er annum, not later than the 120th day after the date the
p
City notifies the Company of a violation. The Company
acknow].edges 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. Upon
learning that any "undocume~ted worker" is improperly
retained by one of its contractors or subcontractors at its .
facilit on the land described on Attachment "A", the~,
Y .
Company will promptly report,same to the City.
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' T I f ation• Credits and
Section 15. Property ax n orm ,
Refunds. Wit~h res{ect to the land, improvements, units,
p
equipment, inventory and all other property located on such
land, as described in Attachment "A", for the tax years
2009 through 2021, the Company will, to the extent such
ro ert has not been anne-xed by the City, provide the _._.~ ,.
p p Y .
,
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 AppraisalrReview
Board ("AR.B") with respect to such property;
• any inf orma~. settlement or f inal 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 County Apprais
~
a eal thereof, CPC shall pay to City,
pp
each year, the amount calculated based
the property reflected on the ,most
appraisal roll prepared by or ,for
al Review Board, or
on October 15th of
upon the value of
recently adopted
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, af ter the f inal .-:
determination of such protest or appeal, either credit ~~_
. ,
. . w. ..
toward future "In Lieu bf Tax" agreements or refund to CPC ~
the difference between the amount actually paid hereunder
,
and the amount for which the CPC is determined to be
liable, without interest. Under no circumstances shall
there be a re f und or a credi t o f more than ten (10 %) o f any
~ ~
"In Lieu of Tax" payment made.
Section 16. Electrical Usaqe. The Company wi11
, ~ , .
provide the City with information as to the electrical
consumption from Entergy or from any other ~lectric
utilities, transmission and distribution utility,
, ~
municipally owned utility, electric cooperative, or from
any other source, as well as all mete~ing loCations that
service the area described in Attachment "A". TY~e
information provided by the Company to the City regarding
such electrical consumption and metering locations shall be
held confidential by the City.
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1
Section 17. Notice of Default. Notwithstanding
.
anything herein to the contrary contained, in the event of ~
any breaCh by the Company of any of the~ terms or conditions
o~f th~~is Agreement, the City shall give-the Company not less
~ . , .
than f ive ( 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 v~ill 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 prov~ided for herein. In the case of
~
~
such a suit, and to encourage timel~r payments, the City can
seek 100a of all rnonies that the City would have received
from the Company if it been within the corporate limits,
;
which include 1000 of all taxes, building permits, sales or
use taxes; and all franchise fees on electrical u~age, ,
interest and penalty thereon, attorney's fees, and court
COStS.
Section 18. Entire Agreement. This Agreement
r
. '
constitutes the entire agreement of the parties with
. --. -_ ~
:_ . ___ 1
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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 only by written instrument
signed by all of the parties hereto.
Section 19. Severabilit . If any term or provision
-
in this Agreement, or , tk~e application thereof to any person
~
or circumstanee, shall to any extent be held to be invalid
or unenf orceable by a court of competent j urisdiction, such
. invalidity or unenforceability s~hal~l not affect any other
,
,
provision of this Agreement or the application thereof,
~
which can be given effect without .the invalid or
, ~
,
unenforceable rovision or application, and the parties
p ..
a~ree`that the provisions of this Agreement are and shall
g
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
an or more of such remedies shall not be deemed to be a
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waiver of any other right, remedy, or privilege provided
for herein or available at law or in equity.
l
. _---^
. -^
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Section 21. Governing Law. This Agreement shall be
governed by and construed in accordance ~ith 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 dee~med an
~
original, and all of which taken together, shall constitute
. , .
but one and the same instrument.
Section 23. Authorit~. By acceptanCe of this
Agreement and/or benefits conferred hereunder, the Company
re resents and warrants that its undersigned agents have
~
e and unrestricted authority to enter into this
complet
Agreement and to obligate and bind the Cornpany to all of
the terms covenants and conditions contained herein.
,
Section 24.~ -Notice. Any notice provided for in
this A reement shall be given in writing to the parties
g
hereto b certified mail, return receipt requested,
Y
addressed as follows:
TO CITY:
City Manager
C I TY OF PORT~~ ARTHUR
444 4th St.
Port Arthur, TX 77640
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TO COMPANY:
1
TOTAL PETROCHEMICALS USA, INC.
29
_.~ - ^
WITH A COPY T0:
City Attorney
CITY OF PORT ARTHUR
4.44 4th St.
Port Arthur, TX 77640
409) 983-8126
, 4097 983-8124 ~
Section 25. Term of Agreement._ This Agreement is
_
~ effective the lst day of ~ariuary, 2009, and shall expire on
~ the 31st day of December, 2021, unless extended by the City
of Port Arthur, as delineated in Section 5.
R
Section 26. Com an Obli ations. 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,
g
any agreement to which the Company is a party as~of the ~
date hereof, or (ii) to hire or retain any person, or to
.
award any contract for materials, supplies, equipment or
r
services to any vendor, supplier, professional, contraCtor
or subcontractor, unless, in the Company's sole discretion,
A such erson is qualified, is willing to perform the
() p
work and satisfies all of the Company's normal standards
,
for em lo ent, and tB) such vendor, supplier,
p Y~
rofessional, contractor or subcontra~ctor is qualified,
p ~.
financiall sound, has an adequate safety record, is
Y
,
~.
willing to perform the work, or provide the materials or
z.ida TOTAL.2009-2021.12.9Expansion 30 ~
70452945.2/10707537
services, in the time required and in a competitive manner,
and is the lowes~ qualif ied responsive bidder who meets all
I
the applicable bid specifications.
~
31
r
1
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~
SIGNED AND AGREED to on the day
, 2008.
TOTAL PETROCHEMICALS USA, INC.
BY:
of
ACKNOWLEDGMENT
STATE OF TEXAS , ~ ~
~
COUNTY OF JEFFERSON ~
BEF4RE 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 T4TAL
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.
NOTAR.Y PUBLIC, STATE OF TEXAS
z.ida_premcor_2009.11.4 32 ~
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 Cit of Port Arthur, known to me to be the person whose
Y
name is ascribed to the foregoing instrument, and
acknowled ed to me that he executed the same as the act and
g
,
deed of the Cit of Port Arthur, for the purposes and
Y
considerations. therein expressed, and the capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
day of , A.D., 2008.
r
~ NOTARY PUBLIC, STATE OF TEXAS
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LIST OF ATTACHMENTS
• "A" Area of land ~ ~
, ~
, •"B" Description of owners of property
~ z.ida TOTAL.2009-2021.12.9Expansion 34
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~
ATTACHMENT "B" ~ ,
Description of the units to be built as a result of
the "Deep Conversion Project".
~
i
~
~
~
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70452945.2/10707537
~
~
~
ATTACHMENT "C"
TOTAL PETROCHEMICALS USA, INC. owns all the land and
improvements as delineated in Attachment "A" .
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~
36.
,
interof f ice
MEM R DUM
AN
To: Mayor, City Council, and City Manager ~ ~
From: Mark Sokolow, City Attorney =~_~:~~-.:
-,
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 still reviewing it.
MTS:ts ' ~ ~
Attachment
cc: Director of Finance
z.pr14973_memo t
P. R. No. 14973
- 12/09/08 ts
RESOLUTION N0.
.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
E,XECUTE AN INDUSTRIAL DISTRICT AGREEMENT WITH
, ~
+ TOTAL PETROCHEMICALS USA, INC.
WHEREAS, the City Council of the City of Port~ Arthur deems it ~;,,,;.-:-:-,~, .
in the best intere~ts~ of, ~ the citi~~ze~s of Port Arthur to enter into
- an "In Lieu of Tax" Agreement with TOTAL Petrochemicals USA, Inc.
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
,.
Petrochemicals USA, Inc., in substantially the same form as attached
hereto as Exhibit "A".
Section 3. That TOTAL Petrocl~emicals 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. 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
~ , A.D., 2008, at a Meeting of the City Council of
z.pr14973
the City of Port Arthur, by the following vote: AYES:
Mayor
,
Councilmembers ,
_ _
,
.
, ,
NOES • °,~ -;: - ,
. f-~~~
.
° ., ~~;~ ~.~
MAYOR
ATTEST:
t
TERRI HANKS, ACTING CITY SECRETARY
APPROVED AS T0 FORM:
See City Attorney Memo
CITY ATTORNEY
APPROVED FOR ADMINISTRATION: ~
_ __
CITY MANAGER
z.pr14973
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/
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