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HomeMy WebLinkAboutP.R. 15032: INEOS PHENOLinteroffice MEMORANDUM To: Mayor, City Council, and City Manager From: Mark Sokolow, City Attorney ~~~ Sti~~~-~•~~ Date: December 12, 2008 Subject: P. R. No. 15032; Council Meeting December 16, 2008 Attached is P. R. No. 15032 authorizing the City Manager to execute an Industrial District Agreement with Ineos Phenol. 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.pr15032 memo P. R. No. 15032 12/12/08 is RESOLUTION NO. A RESOLUTION AUTHORIZINC~ THE CITY MANAGER TO EXECUTE AN INDUSTRIAL D]:STRICT AGREEMENT WITH INEOS PHENOL. 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 Ineos Phenol. NOW THEREFORE, BE IT RESOLVEI) BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: Section 1. That the fact~~ and opinions in the preamble are true and correct. Section 2. That the City Council hereby authorizes the City Manager to execute an "In Lieu of Tax" Agreement with Ineos Phenol, in substantially the same form as attached hereto as Exhibit "A". Section 3. That Ineos PY:~enol 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 de]_ineated in P. O. No. 5925. Section 4. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D. , 2008, at a Meeting of the City Council of the City of Port Arthur, by the following vote: AYES: z.pr15032 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.pr15032 EXHIBIT "A" DRAFT STATE OF TEXAS § § COUNTY OF JEFFERSON § INDUSTRIAL DISTRICT AGREEMENT WITH INEOS (2009-2013) WHEREAS, INEOS (hereinafter referred to as the "Company") [owns] t•he land described in Attachment "A"; and WHEREAS, the City of Port Arthur (hereinafter referred to as the "City") and the Company desire to enter into an Industrial District Agreemer.~t with respect to the land described in Attachment "A" that is within the extraterritorial jurisdiction of the City; and WHEREAS, the City Council is concerned as to the unemployment rate of Port ArtYiur residents; and, WHEREAS, the City Council is interested in maximizing job opportunities and contracting opportunities for Port Arthur residents and Port Arthur businesses and contractors, and the City Council is interested in working with industry and Lamar State College-Port Arthur to obtain sound information on current hiring and procurement efforts, including results, and working with industY~y to try to increase employment opportunities for Port Arthur residents and procurement for Port Arthur businesses; and i DRAFT WHEREAS, the City Council also believes improved opportunities for minority a.nd 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 City and the Company agree that there has been full and adequate consideration for this Agreement; and WHEREAS, this Agreement is authorized under Sections 42.044 and 212.172 Local Government Code, Vernon's Texas Code Annotated and Article 1, Section 5 of the C:ity's Charter, and the parties agree that the following term: 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 Company agree with each other as follows: Section 1. Payments by the Company. z DRAFT (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 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) For each of the tax: years 2009 through 2013,, and subject to the provisions c>f Section 1(c), the Company shall pay to the City of Port Arthur an 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 value (as defined in Section 5 below) o:f 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. Such "In Lieu of Tax" payment shall be paid by October 1.5 of each such tax year. (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 3 DRAFT all other property located on such land, as described in Attachment "A", for such tax year exceeds such taxable value for the immediately presceding tax year by more than ten percent (10%), then for purposes of calculating the amount of the payment for such tax year under Section :L(b), such taxable value for such taxa ble year shall be an amount equal to ~10a 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 ta:~able value for the immediately prE~ceding tax year by more than ten percent (100), then for purposes of calculating the amount of the payment for such tax year under Section _L(b), such taxable value for such tax year shall be an amount equal to 900 of such taxable value for the immediately preceding tax year. If, for example, such taxable value for the tax year 2010 is 15 0 less than such taxable value for the tax year :?009, the amount of the payment far 2010 under Section 1(b) is equal to the product of th.e City's tax rate for 2010 multiplied by 75% multiplied by 900 of such taxable value for the tax year 2009. If, for example, such taxable value 4 DRAFT 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 75o multiplied by 1100 of such taxable value for the tai: year 2009. (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 Section 15, once an "In Lieu of Tax" payment is paid to the City, the City shall not refund or credit any of said payment. Section 2. Certain Emergencies. If requested orally or in writing by the Company, the City's Fire Department may, in its solE~ discretion, provide back-up Fire Suppression Support as determined by the City's Fire Chief, and the City's PolicE~ Department may, in its sole 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 C'ity's extraterritorial jurisdiction, at no cost or expense to the Company. Nevertheless, the Company shall abide by and shall take such precaution;s as to prevent (1) fires, explosions and chemical releases and (2) the imprudent s DRAFT 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 t:he 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 rE~sponse, 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 initial and primary (as opposed to back-up) fire suppression services or if a clean u.p 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 it;s affiliated providers, i.e., ambulance companies that are called to the scene. Section 3. Certain Notifications The Company shall immediately notify the central dispatch office which serves the City's Fire Chief, Police Chief, and the Ciity's 6 DRAFT Emergency Management Coordinator of all incidents involving fires, serious injuries, dE~aths, chemical releases and flooding that create a health and safety hazard tc> the community or that exceed perrnissible exposure limits under applicable state and federal ]_aw. Section 4. Welfare Reasons Annexatior- for Health, Safety and It is specifically stipulated that nothing in this Agreement will in any manner limit or restrict the authority of the City to annex all or part of said lands and facilities during the period of the Agreement if the City should determine that such annexation is reasonably necessary to promote and protect the general health, safety, and welfare of the persons residing within or adjacent to the City, provided however, that the City agrees that such annexation for the land described in Attachment "A" prior to October 1, 2013 will not be made for revenue purposes only. 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" i:E legislation is enacted which limits or restricts the authority of the City to anne}; all or part of said land and improvements. In the event of annexation under this Section 5 or the preceding Section 4, DRAFT (i) the Company will not k~e 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 Company shall not be required to pay ad valorem taxes to th.e 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, 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 i:n 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 Company 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 s DRAFT located within the corporates 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 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 i.n the immediately preceding sentence, for successive periods not to exceed 15 years each, for a total duration not to exceed 45 years, oz- the maximum period allowed by law, whichever is longer. As used in this Agreement, "taxable value" means the ta:~able 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 anci 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 e};tra- territorial jurisdiction of the City, as described in 9 DRAFT Attachment "A". Such "taxable value" also includes the taxable value on such rolls o:E any property that is located in a foreign trade zone or in any other type of federal, state, or local zone. Section 6. Future Actions. The parties agree that the City has the sole discretion, after October 1, 2013, to annex the property described in Attachment "A" or to enter into negotiations with the Company regarding an agrea_ment 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 miniimum 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' o~° lessees' "in lieu of tax" payment to prevent annexation by the City. If the City io DRAFT annexes a tract or tracts, ;such annexed tract or tracts shall be deleted from the description of the land set f=orth on Attachment "A" for all purposes of this Agreement, and the Company's total "in lieu of tax" payments under this Agreement will be reduced accordingly. Section 8. Assignment; Binding Effect. If the Company desires to assign thi~~ 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 unreasonably withheld, delayed or conditioned. The Company shall provide a description of the assignee and such other information as is reasonably requested to indicate that the assignee will operates 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 sha:11 inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. i~ DRAFT Section 9. Equitable Relief. It is agreed by the parties to this Agreement that the Company and the City have the right to seek equitable relief, including specific performance of this Agreement. Section 10. Inspections. The Company shall allow a reasonable number of authorized employees and/or 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 t:o 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 time~~ and will only be conducted in such manner as to not interfere with the Company's safety standards and security standards and rules. All such inspections will be made with one or more representatives of the Company and in accordance with the Company's safety standards. The Company may require any person conducting such an inspection to execute a confidentiality agreement bE~fore entering the Company's facilities. Section 11. Port Arthur Industrial Group. The Company shall, subject to tYle Company's annual management approval, participate in the Port Arthur Industrial Group iz DRAFT during the life of this Agreement in order to improve employment opportunities for Port Arthur residents. The Company further agrees to E=_ncourage its contractors and subcontractors to establish and fund their own apprenticeship, internship, education and/or ment.oring 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 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 campanies procure goods and services so that the pool of such businesses is representative of the busines:~ 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 13 DRAFT and/or women owned business enterprise ("MWBE"), a Port Arthur historically underutilized business ("HUB"), a.nd 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 t:o 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 servicE~s 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 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 14 DRAFT 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, quar.~tities, 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 is DRAFT 2258, Texas Government Code, V.T.C.A., after the City has provided reasonable advance notice to the Company of the meeting at which such prevailing wage is reasonably set and afforded the Company an opportunity to be heard by the City Council on such matter at such meeting. (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 keen 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 commex-cial 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. 16 DRAFT • 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 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 Wor}~; Force Commission • Lamar State College of Port Arthur • Port Arthur ISD • Sabine Pars 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 ~~ DRAFT • 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 inkoperational: or construction efficiency; • to hire qualified citizens of Port Arthur for regular, full-time jobs; and • to request its prime contractors to consider soliciting through the local office of the Texas Workforce Commission and general media to hire qualified Port Arthur residents for jobs and taking such other measures as delineated in this Agreement. (f) (i) The Company and the City agree to set up a three-member grievance board (the "Grievance Board") made up of one member appointed by the City, one member appointed by the Company, and one member who will be the head of the Grievance Board and will be from Lamar State 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. is DRAFT (ii) A written grievance can be made to the Grievance Board by a Port Ax-thur business who claims that it sought to be employed by the Company and was not given a due opportunity under standards set forth in the terms of this Agreement. (iii) If a written grievance is made, the Company shall make a written response within fourteen (14) days thereof. The Grievance Board will meet to review the grievance and the Company's response within thirty (30) days of the date of the grievance. (iv) If an LBE or other business, or its designee, files two or more unfounded complaints of business discrimination, the LBE or business, and/ or its designee, will be in violation of the City's LBE program and the Grievance Board can recommend to the parties that the LBE or business be removed from the LBE. (v) The Grievance Board will take such action as necessary or advisable to preserve the confidentiality of grievances and the responses, deliberations and proceedings with respect therE~to. 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. 19 DRAFT (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), (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 tc> 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 zo DRAFT • 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 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. ai DRAFT (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 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 otYier mutually agreeable pa:rty). 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 zz DRAFT aggregate and does not identify any individual or include any information which would l=end to make the identity of any individual ascertainable. The Company may require any such monitor to execute a confidentiality agreement before making any records or other .information available to such monitor. Section 14. Undocumented Workers. The Company certifies that they will not knowingly employ an "undocumented 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 23 DRAFT 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 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 determinat:ion of any tax protest filed by CPC with the Jefferson County Appraisal Review Board, or 24 DRAFT 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 toward future "In Lieu of Tax" agreements or refund to CPC the difference between the amount actually paid hereunder and the amount for which t:he CPC is determined to be liable, without interest. Under no circumstances shall there be a refund or a credit of more than ten (l0a) of any "In Lieu of Tax" payment made.. Section 16. Electrical Usage. The Company will provide the City with infox-mation 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 zs DRAFT information provided by the Company to the City regarding such electrical consumption and metering locations shall be held confidential by the City. Section 17. Notice of Default. Notwithstanding anything herein to the contrary contained, in the event of any breach by the Company of any 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 100a of all taxes, building permits, sales or use taxes, and all franchise fees on electrical usage, 26 DRAFT 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 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 a~ DRAFT 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 Ag:reement 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 contract shall be given in writing to the parties hereto by certified mail, return receipt requested, addressed as follows: zs DRAFT TO CITY: TO the Company: City Manager CITY OF PORT ARTHUR 444 4th St . Port Arthur, TX 77640 INEOS 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 29 DRAFT 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. 30 SIGNED AND AGREED to on the day of 2008. INEOS 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 INEOS 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 31 80409448.1/1080933'9 DRAFT 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 80409448.1/10809339 32 DRAFT LIST OF ATTACHMENTS "A" Area of land owned by the Company "B" Description of owners of property 80409448.1/10809339 33