HomeMy WebLinkAboutP.R. 14999: BASF CORPORATION / OLD SANDOZ FACILITYinteroffice
MEMORANDUM
To: Mayor, City Council, and City Manager
From: Mark Sokolow, City Attorney ~~ ~•~~,~
Date: December 12, 2008
Subject: P. R. No. 14999; Council Meeting December 16, 2008
Attached is P. R. No. 14999 authorizing the City Manager to
execute an Industrial District Agreement with BASF Corporation for
the Old Sandoz Facility. We received the latest draft after 7:00
p.m. on Friday, December 12, 2008 and we are still reviewing it.
MTS:ts
Attachment
cc: Director of Finance
z.pr14999 memo
P. R. No. 14999
12/12/08 is
RESOLUTION NO.
A RESOLUTION AUTHORIZINC~ THE CITY MANAGER TO
EXECUTE AN INDUSTRIAL D]:STRICT AGREEMENT WITH
BASF CORPORATION FOR THE OLD SANDOZ FACILITY
WHEREAS, the City Council of the City of Port Arthur deems it
in the best interests of the citi~sens of Port Arthur to enter into
an "In Lieu of Tax" Agreement with BASF Corporation for i~he Old
Sandoz facility.
NOW THEREFORE, BE IT RESOLVEI) BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1.
That the fact: and opinions in the preamble
are true and correct.
Section 2.
That the City Council hereby authorizes t:he City
Manager to execute an "In Lieu of Tax" Agreement with BASF
Corporation for the Old Sandoz Facility, in substantially the same
form as attached hereto as Exhibit: "A".
Section 3. That BASF Corporation for the Old Sandoz
Facility shall sign and return thE, Agreement by December 23, 2008,
or this Resolution is null and void and the property described
herein is annexed, effective December 31, 2008 at 11:59 p.m., as
further delineated in P. O. No. 5925.
Section 4.
That a copy of the caption of this Resolution be
spread upon the Minutes of the City Council.
READ, ADOPTED AND APPROVED on this day of ,
z.pr14999
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 SECRETARS.'
APPROVED AS TO FORM:
See City Attorney Memo
CITY ATTORNEY
APPROVED FOR ADMINISTRATION:
CITY MANAGER
z.pr14999
EXHIBIT "A"
STATE OF TEXAS §
COUNTY OF JEFFERSON §
INDUSTRIAL DISTRICT AGREEMENT
WITH BASF CORPORATION
(2009 to 2013)
WHEREAS, in September 2007, the City of Port Arthur
(hereinafter referred to as the "City") and E3ASF
Corporation (hereinafter referred to as the "Company")
entered into an Industrial District Agreement. for the E3ASF
plant that produces chemica]_s for agricultural usage,
providing for the payment to the City of Port Arthur of 800
of the amount of taxes that the Company would have paicl to
the City as if it had been ]_ocated within the corporate
limits of the City; and,
WHEREAS, the Industrial District Agreement was
approved by Resolution No. 07-439 and expires December 31,
2008; and,
WHEREAS, the assessed value on this facility has grown
over the years to the JCAD assessed value of at lE~ast
$85,259,710; and
WHEREAS, the City Council is concerned as to the
unemployment rate of Port Arthur residents; and,
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WHEREAS, the City Council is interested in maximi~:ing
job opportunities and contracting opportunities for Port
Arthur residents and Port: Arthur businesses and
contractors, and the City Council is interested in working
with industry and Lamar State College-Port Arthur to obtain
sound information on current hiring and procurement
efforts, including results, and working with industry to
try to increase employment opportunities for Port Arthur
residents and procurement for Port Arthur businesses; anc~
WHEREAS, the City Council also believes improved
opportunities for minority and women-owned businesses is
important; and
WHEREAS, the Company's hiring and procurement
experience and efforts to increase Port Arthur resident
hiring and Port Arthur procurement opportunities will be
considered by the City Council in future in-lieu of tax
contractual agreements; and
WHEREAS, the Company owns the land described in
Attachment "A"; and
WHEREAS, the City and the Company desire to enter into
an Industrial District Agreement with respect to the land
described in Attachment "A" that is within the
extraterritorial jurisdiction of the City; and,
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WHEREAS, the City and the Company agree that there has
been full and adequate consideration for this Agreement;
and
WHEREAS, this Agreement i.s authorized under Sections
42.044 and 212.172 Local Government Code, Vernon's TE:xas
Code Annotated and Article 1, Section 5 of the Cit:y's
Charter, and the parties agree that the following terms are
reasonable, appropriate, and not unduly restrictive of
business activities; and
WHEREAS, all parties fired that this Agreement, as
delineated herein, is beneficial to each party.
NOW, THEREFORE, in consideration of the promises and
the mutual agreements of the parties contained herein, the
City and the Company agree with each other as follows:
Section 1. Payments by the Company.
(a) For each of the tax years 2009 through 2013, the
Company shall pay to the City the amounts delineated in
this Section 1 so long as; this Industrial District
Agreement is in full force anti effect and all of the land
described in Attachment "A" i.s not annexed by the City.
For purposes of this Agreement:, the term "tax year" means
the calendar year, i.e., January 1 through December 31.
(b) The Company shall pa,y to the City of Port Arthur
$500,000 on January 1, 2009. In addition, on October 15tH
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of each of the tax years 2009 through 2013, and subject. to
the provisions of Section 1(c;l, the Company shall pay to
the City of Port Arthur an amount equal to seventy-f=ive
percent (750) of the amount of property taxes that the
Company would have paid to tYie City with respect to the
taxable value (as defined in Section 5 below) of the land,
improvements, units, equipment:, inventory and all of:her
property located on the land, as described in Attachment
"A", and pertaining to the refinery as if they had been
located within the corporate limits of the City of F?ort
Arthur. Each of such annual payments will be reduced. by
20% of the January 1, 2009 payment (i.e., $500,000 x 200 =
$100,000). Such annual payment:s will be further reducec~ 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 Company payments to City
January 1, 2009 $500,000
October 15, 2009 75$ of taxes as if the
property was within the City
less $123,750
October 15, 2010 75~ of taxes as if the
property was within the City
less $124,000
October 15, 2011 75~ of taxes as if the
;property was within the City
less $118,000
October 15, 2012 75$ of taxes as if the
property was within the City
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less $112,000
October 15, 2013 '15~ of taxes as if the
property was within the City
less $106,000
(c) Notwithstanding anything contained herein to the
contrary, with respect to each of the tax years 2010
through 2013,:
(i) if the taxable value of the taxable portion
of the land, improvements, units, equipment, inventory and
all other property located on such land, as described in
Attachment "A", and pertaining to the refinery for such tax
year exceeds such taxable value for the immediately
preceding tax year by more than ten percent (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", and pertaining to the refinery for such tax
year is less than such taxable value for the immediately
preceding tax year by more than ten percent (100), then for
purposes of calculating the amount of the payment for such
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tax year under Section 1(b), such taxable value for such
tax year shall be an amount equal to 900 of such taxable
value for the immediately preceding tax year.
If, for example, such taxable value for the tax year 2010
is 15 0 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 Y~ate for 2010
multiplied by 75% multiplied by 900 of such taxable value
for the tax year 2009, less $124,000. If, for example,
such taxable value for the tax: year 2010 is 15% 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 750
multiplied by 1100 of such ta~:able value for the tax year
2009, less $124,000.
(d) The City shall not refund or credit any "In Lieu
of Tax" payments previously paid by the Company prior to
the date of the execution of this Agreement, either
directly or indirectly, to the City. Except as delineated
in this Section 1 and in Section 15, once an "In Lieu of
Tax" payment is paid to the City, the City shall not refund
or credit any of said payment.
Section 2. Certain Emergencies. If requested
orally or in writing by the' Company, the City's Fire
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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
discretion, assist in providing an evacuation route and
traffic control in the case of a fire or a chemical release
at the Company's facilitie;~ 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
City. The Company shall employ or provide sufficient
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 or.~ the land, as described in
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Attachment "A". If there ins a fire and the City is
requested to provide initial and primary (as opposed to
back-up) fire suppression services or if a clean up is
required of the City, the Company will pay to the City the
costs and expenses incurred by the City and any of its
departments or of any of its affiliated providers, i.e.,
ambulance companies that are called to the scene.
Section 3. Certain Notifications. The Company
shall immediately notify the central dispatch office wY~ich
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 healtYi 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 ghat
nothing in this Agreement will in any manner limit or
restrict the authority of the City to annex all or part: of
said lands and facilities during the period of the
Agreement if the City should determine that such annexation
is reasonably necessary to promote and protect the general
health, safety, and welfare of the persons residing within
or adjacent to the City, provided however, that the City
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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 for Health, Safety and
Welfare Reasons. It is spy=_cifically stipulated that
nothing in this Agreement will in any manner limit or
restrict the authority of the City to annex all or part of
said lands and facilities during the period of the
Agreement if the City should determine that such annexation
is reasonably necessary to promote and protect the general
health, safety, and welfare of the persons residing within
or adjacent to the City, provided however, that the City
agrees that such annexation for the land described in
Attachment "A" prior to October 1, 2013 wi1:1 not be made
for revenue purposes only.
Section 5. Annexation Due to Legislative Action.
Notwithstanding the provisions of Section 4, the parties
agree and consent that the City may annex the land
described in Attachment "A" if legislation is enacted which
limits or restricts the authority of the City to annex all
or part of said land and improvements. In the event of
annexation under this Section 5 or the preceding Section 4,
(i) the Company will not bES required to make further
payments under this Agreement for any calendar year
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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
l~t of said year, and (ii) the Company 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 or on a new "in lieu
of tax" agreement, the Company agrees that, f.or so long as
it or its assignees and succe:~sors or affiliates own such
property, it will continue to :pay to the City the "in 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 (75%) of the amount of property taxes that the
Company would have paid to the City with respect to the
taxable portion of the ]_and, improvements, un:its,
equipment, inventory and all oi~her 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.
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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 Company agrees and consents that the City has the
option, in the City's sole discretion, to extend this
Agreement and that the Company 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 duration not, to exceed 45 years, or the
maximum period allowed by law, whichever is longer. As
used in this Agreement, "taxak~le value" means the taxable
value as determined by the Jefferson County Appraisal
District in appraisal rolls after the completion of all
litigation and appeals (if any), of the taxable portion of
the land, improvements, units, equipment, inventory and all
other property located on such land, as described in
Attachment "A", excluding the. value of exempt pollution
control devices and any other exempt property, owned or
leased by the Company and located within the extra-
territorial jurisdiction of the City, as described in
Attachment "A". Such "taxable value" also includes the
taxable value on such rolls of any property that is located
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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 Cornpany regarding an agreement
concerning the payment by thE~ Company of additional "in
lieu of tax" payments for future years.
Section 7. Lessees and Other Owners. The present
owners and lessees of the land, improvements, units,
equipment, inventory, and all other property 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 Company 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
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on Attachment "A" for all pur~>oses of this Agreement, and
the Company's total "in lieu of tax" payments under this
Agreement will be reduced accordingly.
Section 8. Assignment; Binding Effect. If the
Company desires to assign this Agreement to any person, the
Company shall provide 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 unreaso:rlably withheld, delayed or
conditioned. The Company shall provide a description of
the assignee and such other information as is reasonably
requested to indicate that the assignee will operate the
facility as a reasonably prudent operator, act as a good
corporate citizen, and will fully abide by the terms of
this Agreement. If the assignment is approved by the City
Council, the Company shall be relieved of its obligations
under this Agreement to the extent that the assignee
expressly assumes such obligations. Subject to the
foregoing, this Agreement shal]_ inure to the benefit of and
be binding upon the parties hereto and their respective
successors and assigns.
Section 9. Equitable Relief. It is agreed by the
parties to this Agreement that the Company and the City
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have the right to seek equitable relief, including specific
performance of this Agreement.
Section 10.
reasonable number
Inspections. The Company shall allow a
of authorized employees and/or
representatives of the City wlZO have been designated and
approved by the City Manager, City Council, or Mayor to
have access to the land described in Attachment "A" during
the term of this Agreement to inspect the plants thereon
and any improvements thereto t:o determine compliance with
the terms and conditions of this Agreement. All such
inspections will be made at mutually agreeable times and
will only be conducted in sucY~ manner as to not interfere
with the Company's safety standards and security standards
and rules. All such inspections will be made with one or
more representatives of the Company and in accordance with
the Company's safety standard~~. The Company may require
any person conducting such an inspection to execute a
confidentiality agreement before entering the Company's
facilities.
Section 11. Port Arthur Industrial Group. The
Company shall, subject to the Company's annual management
approval, participate in the :Port Arthur Industrial Group
during the life of this Agreement in order to improve
employment opportunities for :Port Arthur residents. The
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Company further agrees to encourage its contractors and
subcontractors to establisYi 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 Enterprise
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
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
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Port Arthur disadvantaged busir.~ess 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 far providing the materials,
equipment, supplies or services as required by the contract
solicitation, (B) performing work that is normal for its
business services, and (C) carrying out its obligations by
actually performing, managing, or supervising the work
involved. A business is not performing a "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 faitri 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.
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(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 sc>licitations, times for
presentation of bids, quantities, specifications, and
delivery schedules in ways that: facilitate qualification of
LBE participation, except where it is not commercially
reasonable to do so without material added expense or
substantial inconvenience, or' where there would be a
material sacrifice in operational or construction
efficiency;
(ii) carrying out information and communication
programs on contracting procedures and specific contract
opportunities (e. g., facilitating the inclusion of
qualified LBE's on the Company's bidder list); and
(iii) helping support.:
• an educational program to inform
qualified 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, Texas Government Code, V.T.C.A., after the City has
provided reasonable advance notice to the Company of the
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meeting at which such prevailing wage is reasonably set and
afforded the Company an opportunity to be heard by the City
Council on such matter at such meeting.
(d) Through appropriately promulgated procedures, the
City, using an independent source (Lamar State College of
Port Arthur or other mutually agreeable party), shall
certify as an LBE any business that meets all of the
following criteria:
• The business is financially and operationally
independent from, ,and operates at arm's length
to, any other business.
• The business has been in operation for at least
six months within the City.
• The business is a f:or-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 Company,
including, but not limited to, financial
viability, an adequate safety record, employees
that can pass background and drug testing
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checks, and the business's ability to comply
with applicable local, state and federal
regulations and licensing requirements.
(e) The Company will notify (in writing or by e-mail)
the following of job openings:
• City of Port Arthur
• The Port Arthur News
• Texas Work 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 anti 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 type of
work to improve the opportunities for LBE's
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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 Company and the City agree to set
up a three-member grievance board (the "Grievance Board")
made up of one member appoint:ed 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.
The head of the Grievance Board will serve as facilitator
and will receive a reasonable stipend for his or her time,
to be paid equally by the City and by the Company.
(ii) A written grievance can be made to the
Grievance Board by a Port Arthur business who claims that
it sought to be employed by the Company and was not given a
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due opportunity under standards set forth in the terms of
this Agreement.
(iii) If a written grievance is made, the Company
shall make a written response within fourteen (14) days
thereof. The Grievance Board will meet to review the
grievance and the Company's :response within thirty (30)
days of the date of the grievance.
(iv) If an LBE or other business, or its
designee, files two or more unfounded complaints of
business discrimination, the LBE or business, and/ or its
designee, will be in violation of the City's LBE program
and the Grievance Board can recommend to the parties that
the LBE or business be removed from the LBE.
(v) The Grievance Board will take such action
as necessary or advisable to preserve the confidentiality
of grievances and the responses, deliberations and
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 2013, the
Company agrees to submit on a semi-annual basis a report
providing the information specified in Section 12 (g) (ii) ,
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(iii), and (iv) with respect to the hiring of qualified
Port Arthur residents by the Company and its major prime
contractors and the retention of LBE's by the Company and
by its major prime contractors, as the same relate to the
property described in Attachment "A".
(ii) With respect to the hiring of qualified
Port Arthur residents by the Company, such report shall set
forth the following information:
• Total number of new hires by zip code
• Total number of :new hires
• Total number of applicants disqualified by
reason of not meeting the Company's minimum
hiring standards (for example, disqualified
by reason of drug screening, background
check, etc.)
• Total number of applicants extended an offer
• Total number of applicants completing the
interview process
• 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
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(iii) With respect to the hiring of qualified
Port Arthur residents by the Company's 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
(iv) With respect to the hiring of LBE's, such
report shall set forth the following information:
• Number of LBE's that are included on the
Company's and on its major prime
contractor's bidders lists
• Number of LBE's that were invited to bid on
providing services and goods for the Company
and for its major prime contractor
• Total dollar amount of contracts awarded to
LBE's
• Number of contracts awarded to LBE's
(v) The information provided by the Company to
the City in any such report shall be and remain
confidential.
(h) The City and the Company agree, in conjunction
with other companies that have entered into industrial
district agreements with the City, to set up an advisory
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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
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 monitor may make reports to the City
provided that any data reported is provided in the
aggregate and does not identify any individual or include
any information which would tend to make the identity of
any individual ascertainable. The Company may require any
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such monitor to execute a confidentiality agreement before
making any records or other information available to such
monitor.
Section 14. Undocumented Workers. The Company
certifies that they will not knowingly employ an
"undocumented 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 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 Company of a violation. The Company
acknowledges the City may bring a civil action to recover
any amounts owed under this Chapter, and further
acknowledges that the City may recover court costs and
reasonable attorney's fees incurred in bringing an action
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
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facility on the land described on Attachment "A", the
Company 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 Company will, to the extent such
property has not been annexed by the City, provide the
Director of Finance of the City with copies of:
• each notice of appraised value received by
the Company from the Jefferson County
Appraisal District with respect to such
property;
• any notice of protest filed by the Company
with the Jefferson County Appraisal Review
Board ("ARB") with respect to such property;
• any informal settlement or final ARB order
determining protest with respect to such
property;
• any pleadings filed by the Company as a
petition for review of an order determining
protest of the ARB with respect to such
property; and
• any settlement, final judgment or other
final disposition on appeal or otherwise of
any such lawsuit.
Pending final determination of any tax protest filed
by the Company with the Jefferson County Appraisal Review
Board, or appeal thereof, the Company shall pay to City, on
October 15th of each year, the amount calculated based upon
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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 the
Company has tendered payment to the City hereunder, the
Company's liability hereunder shall be recalculated based
on the final determination of value, and the City shall,
after the final determination of such protest or appeal,
either credit toward future "In Lieu of Tax" agreements or
refund to the Company the difference between the amount
actually paid hereunder and the amount for which the
Company is determined to be liable, without interest.
Under no circumstances shall there be a refund or a credit
of more than ten (lOa) of any "In Lieu of Tax" payment
made.
Section 16. Electrical Usage. The Company will
provide the City with information as to the electrical
consumption from Entergy or from any other electric
utilities, transmission and distribution utility,
municipally owned utility, electric cooperative, or from
any other source, as well as all metering locations that
service the area described in Attachment "A". The
information provided by the Company to the City regarding
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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 Company of arty of the terms or conditions
of this Agreement, the City shall give the Company not less
than five (5) business days' written notice, specifying the
nature of the alleged default, and manner in which the
alleged default may be satisfactorily cured. Thereafter,
the Company will be afforded a reasonable time (but in no
event less than 60 days) within which to cure the alleged
default. Nevertheless, time is of the essence on the
payment schedule for the "in lieu of tax" payments on
October 15th of each year If the Company does not pay the
"in lieu of tax" payment on October 15th of each year, the
City can immediately commence annexation proceedings and
sue for all damages provided for herein. In the case of
such a suit, and to encourage timely payments, the City can
seek 100% of all monies 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 usage,
interest and penalty thereon, attorney's fees, and court
costs.
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Section 18. Entire Agreement. This Agreement
constitutes the entire agreement of the parties with
respect to the subject matter Yiereof 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. Severability. If any term or provision
in this Agreement, or the application thereof to any person
or circumstance, shall to any extent be held to be invalid
or unenforceable by a court of competent jurisdiction, such
invalidity or unenforceability shall not affect any other
provision of this Agreement or the application thereof,
which can be given effect without the invalid or
unenforceable provision or application, and the parties
agree that the provisions of this Agreement are and 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
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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
original, and all of which taken together, shall constitute
but one and the same instrument.
Section 23. Authority. By acceptance of this
Agreement and/or benefits conferred hereunder, the Company
represents and warrants that its undersigned agents have
complete and unrestricted authority to enter into this
Agreement and to obligate and bind the Company to all of
the terms, covenants and conditions contained herein.
Section 24. Notice. Any notice provided for in
this Agreement shall be given in writing to the parties
hereto by certified mail, return receipt requested,
addressed as follows:
TO CITY: TO BASF CORPORATION:
City Manager
CITY OF PORT ARTHUR
444 4th St .
Port Arthur, TX 77640
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WITH A COPY TO: WITH A COPY TO:
City Attorney
CITY OF PORT ARTHUR
444 4th St .
Port Arthur, TX 77640
(409) 983-8126
(409) 983-8124
Section 25. Term of Agreement. This Agreement is
effective the 1st day of January, 2009, and shall expire on
the 31st day of December, 2013, unless extended by the City
of Port Arthur, as delineated in Section 5.
Section 26. Company Obligations. Notwithstanding
anything contained herein to the contrary, the Company
shall in no event be obligated hereunder (i) to amend or
otherwise change, or attempt to amend or otherwise change,
any agreement to which the Company is a party as of the
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 Company's sole discretion,
(A) such person is qualified, is willing to perform the
work, and satisfies all of the Company's normal standards
for employment, and (B) such vendor, supplier,
professional, contractor or subcontractor is qualified,
financially sound, has an adequate safety record, is
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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 TEXP,S §
§
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
70462808.2/10707537
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 ascribed to the foregoing instrument, and
acknowledged to me that he executed the same as the act and
deed of the City of Port Arthur, for the purposes and
considerations therein expressed, and the capacities
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE
day of A.D., 2008.
NOTARY PUBLIC, STATE OF TEXAS
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LIST OF ATTAC~~NTS
"A" Area of land
"B" Description of owners of property
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ATTACHMENT "B"
BASF CORPORATION OWNS ALL THE PROPERTY AS DESCRIBED IN ATTACHMENT "A"
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