HomeMy WebLinkAboutP.R. 14987: BASF AND TOTAL PETROCHEMICALS USA, INC.interoffice
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark Sokolow, City Attorney sti,_~ S~~
Date: December 12, 2008 ~ K
Subject: P. R. No. 14987;
Special Council Meeting Decmber 15, 2008
Regular Council Meeting December 16, 2008
Attached is P. R. No. 14987 authorizing the City Manager to
execute an Industrial District Agreement with BASF Corporation and
TOTAL Petrochemicals USA, Inc. We received the latest draft at 6:32
p.m. on Friday, December 12, 2008 and we are still reviewing it.
MTS:ts
Attachment
cc: Director of Finance
z.pr14987 memo
P. R. No. 14987
12/12/08 is
RESOLUTION 'NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO
EXECUTE AN INDUSTRIAL DISTRICT AGREEMENT WITH
BASF CORPORATION AND 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 with BASF CORPORATION AND 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 BASF
Corporations and TOTAL Petrochemicals USA, Inc., in substantially
the same form as attached hereto as Exhibit "A"
Section 3. That BASF Corporation and 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.
z.pr14987
READ, ADOPTED AND APPROVED on this day of ,
A.D. , 2008, at a Meeting of the City Council of 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
_~
z.pr14987
EXHIBIT "A"
STATE OF TEXAS ~
COUNTY OF JEFFERSON §
INDUSTRIAL DISTRICT AGREEMENT
WITH BASF CORPORATION AND TOTAL PETROCHEMICALS USA, INC.
(2009 to 2013)
WHEREAS, in 1998, the City of Port Arthur (hereinafter
referred to as the "City"), and BASF Corporation and Fina
Oil & Chemical Companies (now known as TOTAL PETROCHEMICALS
USA, INC.) (hereinafter collectively referred to as the
"Companies"), entered into an Industrial District Agreement
for the chemical plant for the payment of $720,000 per year
from 2001 to 2004 and the payment of $900,000 per year from
2005 to 2008; and,
WHEREAS, the Industrial District Agreement was
approved by Resolution No. 98-291 and expires December 31,
2008; and,
WHEREAS, the assessed value on this facility has grown
over the years to the JCAL> assessed value of at least
$1,101,094,000; 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
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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
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 Companies' 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 Companies own the land described in
Attachment "A"; and
WHEREAS, the City and the Companies 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 Companies agree that there
has been full and adequate consideration for this
Agreement; and
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WHEREAS, this Agreement is authorized under Sections
42.044 and 212.172 Local Gc>vernment Code, Vernon's Texas
Code Annotated and Article 1, Section 5 of the City's
Charter, and the parties agree that the following terms are
reasonable, appropriate, and not unduly restrictive of
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 mutual agreements of the parties contained herein, the
City and the Companies agree with each other as follows:
Section 1. Payments by the Companies.
(a) For each of the tax years 2009 through 2013, the
Companies 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 Companies shall pay to the City of Port
Arthur $5,000,000 on January 1, 2009. In addition, on
October 15th of each of the tax years 2009 through 2013, and
subject to the provisions of Section 1(c), the Companies
shall pay to the City of Port Arthur an amount equal to
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seventy-five percent (75a) of the amount of property taxes
that the Companies 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", as if 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., $5,000,000 x 200 = $1,000,000). 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:
Date Companies' payments to City
January 1, 2009 $5,000,000
October 15, 2009 75~ of taxes as if the
property was within the City
less $1,237,500
October 15, 2010 75~ of taxes as if the
property was within the City
less $1,240,000
October 15, 2011 75~ of taxes as if the
property was within the City
less $1,180,000
October 15, 2012 75~ of taxes as if the
property was within the City
less $1,120,000
October 15, 2013 75~ of taxes as if the
property was within the City
less $1,060,000
4
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(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", for such tax year exceeds such taxable
value for the immediately preceding tax year by more than
ten percent (100), 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
(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", for such tax year is less than such taxable
value for the immediately preceding tax year by more than
ten percent (10%), then for purposes of calculating the
amount of the payment for such tax year under Section 1(b),
such taxable value for such tax year shall be an amount
equal to 90% of such taxable value for the immediately
preceding tax year.
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If, for example, such taxable value for the tax year 2010
is 150 less than such taxable value for the tax year 2009,
the amount of the payment for 2010 under Section 1(b) is
equal to the product of the City's tax rate for 2010
multiplied by 75o multiplied by 90% of such taxable value
for the tax year 2009, less $1,240,000. 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 1(b) is equal to the product
of the City's tax rate for 2010 multiplied by 75%
multiplied by 1100 of such taxable value for the tax year
2009, less $1,240,000.
(d) The City shall not refund or credit any "In Lieu
of Tax" payments previously paid by the Companies 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 Companies, 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
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discretion, assist in providing an evacuation route and
traffic control in the case of a fire or a chemical release
at the Companies' facilities located in the City's
extraterritorial jurisdiction, at no cost or expense to the
Companies. Nevertheless, the Companies 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 Companies shall also put in place
an evacuation plan for the Companies' 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 Companies has been notified by the
City. The Companies shall employ or provide sufficient
primary fire suppression response, as well as primary
response for the control and abatement of chemical
releases. The Companies 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 initial and primary (as
opposed to back-up) fire suppression services or if a clean
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up is required of the City, the Companies 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., ambulance companies that are called to the scene.
Section 3. If requested orally or in writing by
the Companies, the City's Fire Department shall provide
back-up Fire Suppression Support as determined by the
City's Fire Chief, and the City's Police Department shall
assist in providing an evacuation route and traffic control
in the case of a fire or a chemical release at the
Companies' facilities located in the City's
extraterritorial jurisdiction. Nevertheless, the Companies
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 Companies shall also
provide an evacuation as is expected in the industry, and
as is required by applicable federal and state laws, and
the health and safety laws of the City. The Companies
shall employ or provide sufficient primary fire suppression
response, as well as control and abate chemical releases.
The Companies shall provide the City's Fire Chief and
Police Chief with Emergency Response Plans for any plants,
refineries, chemical operations or other hazardous
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a
operations that take place on the land, described in
Attachment "A". If there is a fire and the City is
requested to provide initial and primary fire suppression
services or if a clean up is required, the Companies 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. ambulance companies that are called to the
scene.
Section 3. Certain Notifications. The Companies
shall immediately notify the central dispatch office which
serves the City's Fire Chief, Police 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
community or that exceed permissible exposure limits under
applicable state and federal law.
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
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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.
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 Companies will not be required to make further
payments 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
effective if the annexation becomes effective after January
1st of said year, and (ii) the Companies shall not be
required to pay ad valorem taxes to the City for 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 from annexing such property and if the
parties cannot reach an agreement on a new payment schedule
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or on a new "in lieu of tax" agreement, the Companies
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, 2013, and will
thereafter continue to annually pay the City an "in lieu of
tax" payment amount equal to seventy-five percent (750) of
the amount of property taxes that the Companies would have
paid to the City with respect to the taxable portion of the
land, improvements, units, 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 Port 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, then pursuant to Sections
42.044 and 212.172, Local Government Code, the Companies
agrees and consents that the City has the option, in the
City's sole discretion, to extend this Agreement and that
the Companies will 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
successive periods not to exceed 15 years each, for a total
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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 any other exempt property, owned or leased by
the Companies 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 1, 2013, to
annex the property described in Attachment "A" or to enter
into negotiations with the Companies regarding an agreement
concerning the payment by the Companies 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,
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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 adjacent area, as
per Chapter 43 Local Government 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 Companies
from paying the other owners' or lessees' "in lieu of tax"
payment to prevent annexation by the City. If the 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 Companies' total "in lieu of tax" payments under this
Agreement will be reduced accordingly.
Section 8. Assignment; Binding Effect. If the
Companies desires to assign this Agreement to any person,
the Companies 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 Companies shall provide a
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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 Companies shall be relieved of its
obligations under this Agreement to the extent that the
assignee expressly assumes such obligations. Subject to
the foregoing, this Agreement shall 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 Companies and the City
have the right to seek equitable relief, including specific
performance of this Agreement.
Section 10. Inspections. The Companies 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
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. All such
inspections will be made at mutually agreeable times and
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will only be conducted in such manner as to not interfere
with the Companies' safety standards and security standards
and rules. All such inspections will be made with one or
more representatives of the Companies and in accordance
with the Companies' safety standards. The Companies may
require any person conducting such an inspection to execute
a confidentiality agreement before entering the Companies'
facilities.
Section 11. Port Arthur Industrial Grou The
Companies shall, subject to the Companies' 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 Companies 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. Port Arthur Local Business Ente rise
Program.
(a) 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
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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 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:
(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
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
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actually 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
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
appropriateness to the objective, 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 follows:
(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;
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(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 Companies' bidder list); and
(iii) helping support:
• an educational program to inform
qualified LBE's of opportunities and the
Companies' 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 Companies of the
meeting at which such prevailing wage is reasonably set and
afforded the. Companies 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 all of the
following criteria:
• The business is financially and operationally
independent from, and operates at arm's length
to, any other business.
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• 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) 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 the
boundaries of the City.
• The business can be expected to satisfy
qualifications specified by the Companies,
including, but not limited to, financial
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 federal
regulations and licensing requirements.
(e) The Companies will notify (in writing or by e-
mail) the following of job openings:
• 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
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City has provided the Companies with a
copy of such written notification:
Port Arthur labor unions
Associations representing historically
underutilized segments of the
population in Port Arthur
The Companies will also request that its
contractors and subcontractors consider notifying
the above entities of their respective job
openings.
(f) The Companies 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 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 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 Companies and the City agree to set
up a three-member grievance board (the "Grievance Board")
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made up of one member appointed by the City, one member
appointed by the Companies, 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 Companies. 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 Companies.
(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 Companies 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
Companies shall make a written response within fourteen
(14) days thereof. The Grievance Board will meet to review
the grievance and the Companies' 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
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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
proceedings with respect thereto. The Grievance Board will
make written reports to the Companies and to the City as to
their findings, and the Companies 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 2013, the
Companies agrees to submit on a semi-annual basis a report
providing the information specified in Section 12(g)(ii),
(iii), and (iv) with respect to the hiring of qualified
Port Arthur residents by the Companies and its major prime
contractors and the retention of LBE's by the Companies 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 Companies, such report shall
set forth the following information:
• Total number of new hires by zip code
• Total number of new hires
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• Total number of applicants disqualified by
reason of not meeting the Companies' 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 qualified
Port Arthur residents by the Companies' major prime
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
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(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
Companies' 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
Companies and for its major prime contractor
• Total dollar amount of contracts awarded to
LBE's
• Number of contracts awarded to LBE's
(v) The information provided by the Companies
to the City in any such report shall be and remain
confidential.
(h) The City and the Companies 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 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 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
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Companies' records and hiring practices in accordance with
this Agreement so as to verify whether the Companies 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 Companies' safety and
security standards and rules. All inspections will be made
with one or more representatives of the Companies present,
and any information provided by the Companies 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 Companies 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 Companies
certifies r_hat 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
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States, or (iii) authorized under law to be employed in
that manner in the United States. The Companies
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 (100) per annum, not later than the 120th day
after the date the- City notifies the Companies of a
violation. The Companies 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. Upon learning that any "undocumented worker" is
improperly retained by one of its contractors or
subcontractors at its facility on the land described on
Attachment "A", the Companies will promptly report same to
the City.
Section 15. Property Tax Information; Credits and
Refunds. With respect to the land, improvements, units,
equipment, inventory and all other property located on such
land, as described in Attachment "A", for the tax years
2009 through 2013, the Companies will, to the extent such
property has not been annexed by the City, provide the
Director of Finance of the City with copies of:
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• each notice of appraised value received by
the Companies from the Jefferson County
Appraisal District with respect to such
property;
• any notice of protest filed by the Companies
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 Companies 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 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 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
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toward future "In Lieu of 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 refund or a credit of more than ten (l00) of any
"In Lieu of Tax" payment made.
Section 16. Electrical Usage. The Companies 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 Companies 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
any breach by the Companies of any of the terms or
conditions of this Agreement, the City shall give the
Companies 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 Companies will be afforded a
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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 as well as the
payment of $5,000,000 on January 1, 2009. If the Companies
do not pay the "in lieu of tax" payment on October 15th of
each year and do not pay $5,000,000 on January 1, 2009, the
City can immediately commence annexation proceedings and
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 Companies 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 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
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 al]_ of the parties hereto.
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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 t:he 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-
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 herein 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
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
30
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original, and all of which taken together, shall constitute
but one and t:he same instrument.
Section 23. Authority. By acceptance of this
Agreement and/or benefits conferred hereunder, the
Companies represents and warrants that its undersigned
agents have complete and unrestricted authority to enter
into this Agreement and to obligate and bind the Companies
to all of the terms, covenants and conditions contained
herein.
Section 24. Notice. Any notice provided for in
this contract shall be given in writing to the parties
hereto by certified mail, return receipt requested,
addressed as follows:
TO CITY: TO COMPANIES:
City Manager BASF CORPORATION
CITY OF PORT ARTHUR
444 4th St .
Port Arthur, TX 77640
TOTAL PETROCHEMICALS USA, INC.
WITH A COPY TO:
City Attorney
CITY OF PORT ARTHUR
444 4th St .
Port Arthur, TX 77640
409) 983-8126
409) 983-8124
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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. Companies Obligations. Notwithstanding
anything contained herein to the contrary, .the Companies
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 Companies 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
services to any vendor, supplier, professional, contractor
or subcontractor, unless, in the Companies' sole
discretion, (A) such person is qualified, is willing to
perform the work, and satisfies all of the Companies'
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 services, in the time required and in a
competitive manner, and is the lowest qualified responsive
bidder who meets all the applicable bid specifications.
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SIGNED AND AGREED to on the day of
2008.
BASF CORPORATION
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 BASF CORPORATION
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
z.ida~remcor_2009.11.4 33
SIGNED AND AGREED to on the day of
2008.
TOTAL PETROCHEMICALS 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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70452947.2/10707537
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 whose
name is a:~cribed 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~MENTS
"A" Area of land
"B" Description of owners of property
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ATTACHMENT "B"
BASF Corporation and TOTAL PETROCHEMICALS USA, INC., as well as
BASF FINA Petrochemicals Limited Partnership, own all the land
and improvements as delineated in Attachment "A"
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