HomeMy WebLinkAboutPR 15032 INDUSTRIAL DISTRICT AGMT. W/INEOS PHENOLinteroffice
MEM R DUM
~ ,~~,:~~
S ~
,
To: Mayor, City Council, and City Manager
From: . Mark Sokolow, City Attorney /J ~ R
~ I/Lv~+~ ~ ~,~'`~,.~.~'
Date: December 12, 20081
Subject: P. R. No. 1'5032; 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 Fr,iday, December 12,
2008 and we are still reviewing it.
MTS:ts
Attachment ~
cc: ~irector of Finance ~
~
~ ~,
,
z.pr15032_memo
P. R. No. 15032
12/12/08 ts
, .
RESOLUTION N0.
A RESOLUTION AUTHORIZING THE CITY MANAGER ~'0
EXECUTE AN II~DUSTRIAL DISTRICT AGREEMENT WITH
INEOS PHENOL. ~ ~
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 wlth Ineos Phenol. ~ __
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF P4RT ARTHUR:
Section l. That the facts and opinions in the p~eamble
are true and correct. ~
Section 2. That the City Council hereby authorizes the City
Mana er to execute an "In Lieu of Tax" Agreement with Ineos Phenol,
g
in substantially the same form as attached hereto as Exhibit "A".
Section 3. That Ineos Phenol shall sign and return the
,.
A reement by December 23, 2008, or this Resolution is null and void
~
and the ro ert described herein is annexe~, effectiv~ December 31,
~ p Y :~
2008 ~at 11:59 .m., as further delineated in P. 0. No. 5~25.
p
Section 4. That a copy of the caption of this Resolution be
, , ~
s read upon the Minutes of the City Council.
p
READ, ADOPTED AND APPROVED on this day of ~
,
08 at a Meetin of the City Council of the City of Port
A.D., 20 , g
Arth~r, by the following vote: AYES:
z.pr15032 .
Mayor ~
CounCilmembers
-
,
,
,
NOES:
~
MAYOR
ATTEST:
TERRI HANKS, ACTING CITY SECRETARY
APPROVED AS TO FORM:
~
See City Attor~ey Memo ,
CITY ATTORNEY
APPROVED FOR ADMINISTRATION: ~
CITY MANAGER .
z.pr15032
„ „
.
~
, , .
/ ~
/
\
~
~
~ ~ D
STATE OF TEXAS ~
~ ~
COUNTY OF JEFFERSON §
~ ~ ~ ~
INDUSTRIAL DISTRICT AGREEMENT
~
WITH INEOS ~ -
(2009-2013~
~
WHEREAS, INEOS (hereinafter referred to as
the "Co~npany" ) [owns] `t~he land ~desCribed in Attachm~nt "A" ;
.~ _
and ~
WHEREAS, the City of Port Arthur (hereinaf ter referred
to as the "City") and the Company desire to enter into an
Industrial District Agreement w.ith re~pect 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 Arthur 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 w~.th industry to
try to increase employment opportunities for Port Arthur
residents and p~ocurement for Port Arthur businesses; and
1
. F
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 City and the Company agree that there has
been full and adequate consideration ~or 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 l, Section 5 of` the City's
Charter, and the parties agree that the following terms are
reasonable, ap~ropriate, and not unduly restrictive of
business activities; and
WHEREP,S, 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.
,
a
1
„ D
Qa) 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 l~nd
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., Januar~ 1 through December 31.
(b) For eaCh~of the tax years 2009 through 2413, and
, . . ,
sub~ect to the provisions of Sectlon 1(c), the Company
shall pay to the City of Port Arthur an arnount 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 def ined in Section 5 below7 of the
land, i~provements, uni~s, equipment, inventory and all
other property located on such land, as desCribed in
Attachment "A", as if they had been located within the
, ~ ~
corpor'ate limits of the City of Port Arth~r. Such "In Lieu
of~Tax" payment shall be paid by October 15 of each such .
tax year.
~c) Notwithstanding anything contained herein to the
contrary, with respect to each of the tax yea~s 2010
through 2013,: -
(i) if the taxable value of the taxable portion
. ;
of the land, improvements, units, equipment, inventory and
~1
3
D
F
d
~ 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 (l00), then for purposes of calculating the
.
amount of the payment for such tax year under Section l~b),
such taxable value for such taxable year shall be an amount
~~ ~ ,
~ , . „ ;, , . , .,
~ - equal to ~~100 of such taxable value for the immedia~ely
. preceding tax year; and ~
. ~ii7 if the taxable value of the taxable portion
,
of the land, improvements, units, equipment, inventory an~
,
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 ~y more than
ten percent (10 0 7, tY~en f or purposes of calculating the
,
. amount of the payment for suCh tax year under Sectlon l(b~,
such taxable value for such tax year shall be an ~mount
equal to 900 of such taxable value for the immediately
preceding tax ~rear. ~
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 ~ayment for 2010 under Sect:ion 1(b) is
equal to the product of the City's tax rate for 2010
multiplied by 75o multiplied by 900 of such taxable va~lue
' ~ for the tax year 2009. If, for example, such taxable value
4
r
. F ~,
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 110a of
such taxable value for the tax year 2009.
~d) The City shall not refund or credit~ any "In Lieu _-
, . ~
. . . - , ~ ~ : .
:
of Tax" payments previously paid by the Comp~ny 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 request~d
orall or in writing by the Company, the City's Fire
Y
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 Cornpany's facilities located in the City's
extraterritorial jurisdiction, at no cost or expense to the
Com an . Nevertheless, the Company shall abide by and
p Y
shall take such precautions as to pr~vent ~1} fires,
~
explosions and chemical releases and ~2~ the imprudent
5
discharge of storm water that contribute to flooding on
adjac~nt property. The Company shall also pu~ in pl~ce 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 ~or any
plants, refineries, chemical operations~or other hazardous
operations that take place on the land, as described in
Attachment "A". If there is a f ire and t~e 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
de artments or of any of its affiliated providers,. i. e. ,
p
ambulance companies that are called to the scen~.
Section 3. Certain Notifications. The Company
shall immediately notify the central dispatch office which
serves the City's.Fire~Chief, Police Chief, and the City's
6
D F
T
Emer enc Mana ement Coordinator of all incidents involving
g Y g .
fires, serious injuries, deaths, chemical releases and
~ .
~ ~ ~ ~
~ flooding that create a health and safety hazard to the
, ,
communit or that exceed permissible exposure limits under
Y
applicable state and ~federal law.
,;
~
Section 4. Annexation for Health, Safety and _.
~--
. _ _.
, . , ~ ,
Welfare Reasons. It is specifically stipulated that ~_
.
nothin in this Agreement will in any manner limit or
g
restrict the authority af the City to annex all or part of
,
said lands and facilities during the period of the
A reement if the City should determine that such annexation
g
is reasonably necessary to promote and protect the general
health, safety, and welfare of the persons residing within
~
or ad'acent to the City, provided however, that the City
J
rees that such annexation for the land descr'ibed in
ag
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
and consent that the City may annex the land
agree
described in Attachment "A" if legislation is ~enacted which
s ~
limits~or restricts the authority of the City to annex all
or part of said land and improvements. In the event of
annexation underrthis Section 5~or the preceding Section 4,
~
~ . ~
~
F
D
T
i) the Company will not be required to make further ,
~
a ents under this Agreement for any calendar year
p Ym
commencin after annexation with respect to the property so
g .
.
annexed, but shall nevertheless be obligat~ed to make full
a ents for the year during which such annexation becomes
p Ym
ef fective i.f the annexation becomes ef f ective af ter January
. .~, .
, , .
1St of said ear, ar~d t ii ) the Company shall not be required
Y
to a ad valorem taxes to the City f or the same period of
pY
time they have already paid an "in lieu of tax" payrnent
;
with respect,to the property described in Attachment "A" to
this A reement. If for an~r reason the City is prevented
9
from annexing such property and if the parties cannot reach
an agreement on a new payment schedule or on a new "in lieu
of tax" a reement, the Company agrees that, for so long as
. g
it or its assignees and successors or affiliates own suCh
ert it will continue~to pay to the City the "in lieu
pr~p Y~
\ , .
of tax" payments delineated in Section 1 until DeCember 31,
013 and will thereafter continue to annually pay the City
2 ,
an "in lieu of tax" payment amount equal to seventy-five
750 of the amount of property taxes that the
percent ( )
Com an would have paid to the City wit~ respeCt to the
p Y
able ortion of the land, improvements, units,
tax p
e ui ment, inventory and all other property located on such
q p
nd as described in Attachmerit "A", as if they had been
la ,
s
D
F
located within the corporate limits of the City of Port
Arthur. Payments will be due on October 1:5th 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 af 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, ~.n the City's sole discretion, to extend this
Agreement and that the Company will continue to annuall~y
~pay the City "in lieu of tax" payme~ts at the seventy-five
(75%) ~rate, as described in the immediately preceding
- sentence, for successive periods not to exceed 15 ~rears
each, for a total dura~ion not to exceed 45 years, or the
' ' d allowed b law whichever is lon er. As
maximum perlo y , g
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 Company ,and located~ within the extra-
, ,
territorial ~jurisdiction of the City, as described, in '
~ _~ ~
~
~~
~~
~
~ ~ ~
9 ~
~
;.
~
D F
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 Attac~ment "A" or to enter
into negotiations with the Company r~garding an agreement
concerning the payment by the Company of additional "in
l ieu. of tax" payments for f uture years .
~ Section 7. Lessees and Other Owners. The present
_ --
owners and lessees of the land, i~nprovements, units,
equipment, inventory, and all other property located on the
{
land, as described in Attac~hment "A", are described in
Attachment "B". The City reserves the right to annex that
' ~ .
tract or parcel with the minimum required adj acent area, as
per Chapter 43 Loca1 Government Code, if the owners or the
ees do not a an "in lieu of tax" payment for its
less p Y
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 ~
+
~
,
;
,
{
lo
~ , D T
~~
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 Company's total "in lieu of tax" payments under this
Agreement will be reduced accordingly.
~ Section 8. Assi nment; Bindin. Effect. If the
g __
. . , .
1 desires to assi n this Agreement to any person, the
Company g
Company sha~.l provide written notice of such assignment ~to
the Cit and shall receive the written consent of the City
Y
- Council, by a duly adopted Resolution, which wri.tten
nsent will not be unreasonably withheld, delayed or
co
conditioned. The Company shall provide a description of
the assignee and such other information as is reasonably
ted to indicate that the assignee will operate the
reques
~facilit as a reasonably ~rudent operator, act as a good
Y
cor orate citizen, and will fully abide by the terms of
p
this A reement. If the assignment is approved by the City
g
Council, the Company .shall be relieved of its obligations
~
,
' A reement to the extent that the assignee
under th~.s g
x ressl assumes such obligations. Subject to the
ep y
' this A reement shall inure to the benef it of and
foregoing, g
'' n the arties hereto and their respective
be binding upo p
successors and assigns. ~
~~
~~
~
~ ~ D FT
Section 9. Ec~uitable Relief .. It is agreed by the
' to this A reement that the Company and the City
parties g
have the ri ht to seek equitable relief, including specific
g
performance of this Agreement.
Section 10. Inspections. The Company shall allow a
e number of authorized employees and/or -
, , reasonabl. ~ .. .
entatives of the Cit who have been designated and
repres Y
,
a roved by the City Manager, City Council, or Mayor to
pp
ve access to the land described in Attachment "A" during
ha
the ~term of this Agreement to inspect the plants thereon
and an improvements thereto to determine compliance with
Y
erms and conditions of this Agreement. All such
the t
ins-,.ections will be made at mutually agr~eeable- times and
p
will onl be conducted in such manner as to not interfere
Y
with the Com any's safety standards and security standards
p
and rules. Al1 such inspections will be made with one or
'ves of the Com an and in accordance with
more representatl p Y
the Com an 's safety standards. The Company may require ~
p Y
n conductin such an inspection to execute ~a
any perso g
nfidentialit agreement before entering the Company's
co Y
facilities.
' Port Arthur Industrial Grou . The
.~Section 11.
. shall sub'ect to the Company's a~nual management
Company , J
~
a roval, parti;cipate in the Port Arthur Industrial Group
pp
~
12
J
D FT
during the life of this Agreement in order to improve
~
employment opportunities for Port Arthur residents. The ,
e
Company 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 re;gular full-time jobs in the Port Arthur
area.
Section 12.
P~ram .
,
Port Arthur Local Business Enterprise
~
_ _ ~1
~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
oods and services so that the pool of such businesses is
g
representative of the business Community at large.
(b) As used in this SeCtion 12: .
,
(1~ ~"LBE" means a Port Arthur business
(including, but not limited to; a Port~ Arthur minority
~ 13
~
D FT
~
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 12Qd), but such term shall
~ not include any Port Arthur business that has ceased~to be
, ~ . ~ . ..
so certified. ~
~ ( ii~) "Commercially Useful ~'unction" means the
erformance of the following functions by a business : (A)
p
bein directl responsible for providing the materials,
g Y
, ,
,
e ui ment, supplies or servi.ces as required by the contract
q p
solicitation (B) erforming work that is normal ~for its
, ~
business services, and (C~ carrying out its obl.igations by
actuall erform~.ng, managing, or supervising the work
Y p
' lved. A business is not performing a"Commercially
lnvo
Useful Function" when its role is limited to that of an
extra artici ant in a transaction, contract, or profit
p p
through which funds are passed in order to obtain the
earance of LBE articipation, e.q., a sham transaction.
app p
(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 ~ ~'
~ T
F
D
a ro riateness to the objective, can reasonably be
pp p
ex ~cted to fulfill the program requirements. ~
p
~c) The Port Arthur Local Business Enterprise Program
shall include,- but is not limited to, good faith efforts
with res ect to utilization of qualified LBE's as follows:
p
, , ,, , .
~l) arranging solicitatlons, t~.mes ~ for
. ;,. .
esentation of bids, quantities, specifications, and ~~
pr .
deliver~ schedules in ways that facilitate qualifiCation of
Y
~ LBE participation, except where it is not commercially
reasonable ~o do so without material added expense or
substantial inconvenience, or where there would be a
material sacrifice in operational or construction
ef f iciency;
ii carr in out information and communication
( ) Y g
ro rams on contracting procedures and specific contract
p g
ortunities (e. ., facilitating the inclusion of
opp g
~ ' ' t and
qualified LBE's on the Company's bldder lls );
, ~ ~ ~ , ~ ~
(lli) helping support:
• an educational ~ program to inform ~
~ ualif~ied LBE's of opportunities and the
q
Company's requirements; and
. ti
• ublication of a local business ~5
p ,
directory.
~
(iv) paying at least the prevailing wage, as ~
,
.reasonably set by the City, ~in accordance with Chapter
15 '
~
a
~ ,
~
~
~
\
~
D ~ FT
2258, Texas Government Code, V.T.C.A., after the City has
rovided reasonable advance notice to the Company of the
p
rneetin at which such prevailing wage is reasonably set ~and
g
af f orded 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
foll~owing 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 for-profit enterprise.
• The business performs a Commercially Usefu.l ,
Function.
• The business maintains its principal place of
business at a fixed, established commercial
address (and not a temporary or movable offiCe,
a ost office box, or telephone answering
p ,
service or a temporary short-term lease) that
is within the~ boundaries of the City and that
rovides all of the services for which LBE
p
certification is sought, other than work
- required to be performed at a~j ob site .
Su liers are required to maintain their
pp
principal place of business within the
boundaries of the City.
{
16
~ ~ ~FT
D
` • Th~e business can be expected to satisfy
' ualifications specified by the Company, ;
q
includin , but not limited ;to, financial
g
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
re ulations and licensing requirements.
g ~
e The Com an will notify ( in v~riting or by e-mail )
( 7 ~ Y
. the f ollowing o~~ j ob openirigs :~- .;~
_ ,
• City of Port Arthur
• The~ Port A~thur News
• Texas ~Jork Force Commission .
• Lamar State College of Port Arthur
• Port Arthur ISD
,
• Sabine Pass ISD
• Di.gital Work Force
• An of the f o1l.owing who have provided
Y
written notice to the Cit~ stating that
it wants to receive notification of
such 'ob o enings and identifying its
~ p
mailing and e-mail addresses, and the
~ City has provided the Company with a
cop~ of such written notification: '
Port Arthur labor unions
Associations representing historically
underutilized segments of the ~
population ~.in Port Arthur
he Com an will also request that its
T p Y
_ ractors and subcontractors consider notifying
cont
bove entities of their respective job
the a
openings.
~f) The Company will make good faith efforts:
~
17
FT
• 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 sacrifi~e in ~ op~xationa~.... ,
or construction efficiency;
,
• to hire qualified citizens of Port A~thur
f or regular, ful 1- t ime j obs ; and
• to request its prime contractors to consider
soliciti.ng through the local of fice 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
u a three-member grievance board~ (the "Grievance Board")
p
made u of one member appointed by the City, one member
p
a ointed by the Company, and one member who will be the
pp
head of the Grievance Board and will be from Lamar State
Colle e of Port Arthur or be another person mutually
g
acce table to the City and the Company. The head of the
p
~
Grievance Board wi~l have the tie breaking vote if needed.
The head of the Grievance Board w~.ll 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
\
~ ~ D ~FT
tii) 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
due opportunity under standards set forth in the terms of
~ z
this Agreement.
~ ~111~ 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 F~~
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 Compan~ and to the City as to
their findings, and the Company and the City shall
th~reafter meet to discuss, if necessary, what, if any,
Corrective action should be taken.
19
~ ~ FT
D
~i) During the tax years 2009 through 2013, the
(g)
,
Com an a rees to submit on a semi-annual basis a report
p Y g
rovidin the information specified in Section 12 (g) ~ii) , ~
p g
(iii), and (iv) with respect to the hiring of qualified
P rt Arthur residents b the Company and its major prime
o Y
contractors and the retention of LBE's by the Company and
. y
' ma'or rime ~contractors, as the same relate to the
by its ~ p
property described in Attachment "A".
ii) With res eCt to the hiring of qualified
( p
Port Arthur residents by the Company, such report shall set
f orth the f ol lowing inf ormation :
• Total number of new hires by zip code
• Total number of new hires ~
• Total number of applicants disqualified by
reason of not meeting the Cornpany'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
F
D
• Total number of applicants meeting minimum
qualifications for the specific positions
(education/experience7
~ , • 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 f ort.h ~~~~ie ,. f ol lowiz~g
,
information: ~
• Number of new hires b~r zip code
• Tota1 number of new hires .
~ • ~ licants extended an offer
. Total number of app
• Such other information liste°d in Section
12 (g7 (ii) above as is reasonably available
- from the major prime contractors
(iv7 Wi.t~ 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 informat~ion provided by the Company to
the Cit in an such report shall be and remain
Y ~
confidential. ~
ai
~
D FT
(h} The City and the Company agree, in conjunction
,,
with other companies that have entered into industrial
,
district a reements with t~e City, to set up an advisory
g
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
, ,,
: .,
~ Colle e of Port Arthur or other mutually agreeable party}.
g
The facilitator will be paid a stipend which s~all be
prorated equally arnong 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
Com an 's records and hiring practices in accordance with
p Y
this Agreement so as to verify whether the Company has
~
com lied and will continue to comply with this Agreement.
p
All ins ections will be made at mutuall~r agreeable times
p
'
and will only be conducted in such manner as to not
unreasonably ,~ interf ere with the Company' s saf ety and
securit standards and rules. All inspections will be made
Y
~ith one or more representatives of the Company present,
and an information provided by the Company to any such
Y
,~ ..
monitor shall be and remain confidential; provided,~
however, that such monitor may make reports to the City
rovided that any data reported is, provided in the
p
~
~ 22
D FT
,
a re ate and does not identify any individual or include
gg g
any information which would tend to make the identity of
any individual ascertainable. The Company may require any
such monitor to execute a confidentiality agreement before
makin any records or other information available to such
g
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 e~ployment, ~,is not ( i) lawfully admitted f or
ermanent residence to the United States, (ii) a temporary
p
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 (10%)
er annum, not later than the 120th day after the date th~
p
Cit notifies the Company of a violation. The Company
Y
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
~FT
D
learning that any, "undocumented worker" is improperly
retained b one of its contractors or subcontractors at its
Y
~ ~acility on the~ land described on Attachment "A", the
Company will promptly report same to the City.
Section 15. Property Tax I~nformation; Credits and
~ Refunds. with respect to the land, improvements, units, T:_
,
~ 1
~ e ui ment, inventory and all~other property Io~cated on such. ~
q p
land, as described in Attachment."A", for the tax years
2009 through 2013, the Company will, to the extent such
ro ert has not~been annexed by the City, provide the
p p Y
Director of Finance~ of the City with copies of :
~ .
~ ~• each notic~e of appraised value received by
~ ~ ~ the Company from the Jefferson County
Appraisal District with respect to such
~~ property;
,
• any notice o~f protest filed by the Company
~ with the Jefferson County Appraisal Review
Board ~"ARB") with respect to~such property;
• any inf ormal settlement or f inal, ARB order
` determining protest with respect to such ~
property;
• any pleadings filed by the Company as a
etition for review of an order determining
p
' ,. protest of the ARB with respect to such
property; and
• any sett~lement, final judgment or other
final disposition on appeal or otherwise of
any such lawsuit.
, Pendin final determination of any tax protest filed
g
b CPC with the Jefferson County Appraisal Review Board, or
Y
24
D FT ~
of CPC shall a to Cit , on October 15th of
appeal there , p y Y
each year, the amount calculated based upon the value of
~ the property reflected on the most recently adopted
a raisal roll prepared by or for Jefferson County
pp
Appraisal DistriCt and as ,f~urther delineated in Section 1
~ of this Agreement. If the final determination of a protest
or ~an a eal reduces the value of the property after CPC
pp
has tendered pa~rment to the City hereunder, CPC' s liability
hereunder shall be recalculated based on the final
determination of value, and the City shall, af ter the~ f inal
determination of such protest or appeal, either credit
,
toward future "In Lieu of Tax" agreements or refund to CPC
4
the difference between the amount actually paid hereunder
and the amount fo~ 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.
S~ction 16. Electrical Usage. The Company will
rovide the City with .information as to the electrical
p
m tion from Enter or from any other electric
consu p gY ,
utilities transmission and distribution utility, ~
,
municipally owned utility, eleCtriC cooperative, or from
an other source, as well as all metering locations that
y _
service the area described in Attachment "A". The ,
25
D ~
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
_
an thin herein to the contrary contained, in the event of
Y g
any breach by the Company of any of the terms or conditions "
.~ ,~~ ~ ~ .
,
o~f~ th~is ~ Agreement, the~ City shall give the Company not less
than five (5) business days'~~written notice, specify~ing the
nature~ of the alleged default, and manner in which ,the
al~leged default may be ~ satisfactorily cured. Thereaf ter,
the Company will be afforded a re~asonable time (but in no
event less than 60~ days7~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 pa~ the
"in lieu of tax" a ent on October 15th of eaCh year, the
p Y~
~Cit can immediately commence annexation proceedings and
Y
sue for all damage~s provided for herein. In the case of
uch a suit and to encourage timely payments, the City can
s ,
~
seek 1000 of all monies that the City would have received
from the Com any if it been within the corporate limits,
p ,
which include 100% of all taxes, building permits, sales or
~
~ use taxes, and all franchise fees on electrical usage,
26
D F
T
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 rior understandings or oral or written agreements
p . .
. . ,
between the parties respecting such subject matter, except
as otherwise provided in the instruments referenced herein.
This Agreement may be amended only by written instrumerit
signed by all of the parties hereto. .
Section 19. Severabilit . 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 tne inval~a or
unenforceable rovision or application, and the parties.
p
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 ex ressly provi.ded herein, all rights, privileges, and
p
reme~lies afforded the parties by this Agreement shall be
2~
D FT
deemed cumulative and not exclusive, and the exercise of
any or more of such remedies shall not be deemed
waiver of any other right, remedy, or privilege
for herein or available at law or in equity.
Section 21. Governing Law: This Agreement
overned b and construed in~accordance with the
9 ~'
the State of Texas. This Agreement is to be perj
to be a
provided
shall be
laws of
=ormed in
Jef f erson County, 'Texas . .
Section 22. Counte arts. This Agreement may be
-
executed in counterparts, each of which shall b~ deemed an
original, and all of which taken together, shall constitute
but one and the same instrument. ~ ~
Section 23. Authorit . By acceptance of this
_
A reement and/or benefits conferred hereunder, the Company
g
represents and warrants that its undersigned agents have
~ com lete and unrestricted authority to enter into this
p
nt and to obli ate and bind the Company to all of
Agreeme g
the terms, covenants and conditions contained herein.
Section 24e ~Notice. Any notice provided for in
.
~ this contract shall be given in writing to the parties
hereto b certified mail, return receipt requested,
Y
addressed as follows:
~~ 2 8
~ ~ FT
D
TO CITY: - TO the Company:
City Manager INEOS
CITY OF PORT ARTHUR
444 4th St . ~
Port Arthur, TX 77640
r
WITH A COPY T0:
City Attorney~ ~
....~ ~ ,. C I TY t~F PORT; ARTHL7R
' 444 4th St.
Port Arthur, TX 77640
~409~ 983-8126 ~
~ (409) 983-8124
~
ection 25. Term of A reement. This Agreement is '
S
, .
effective the lst day of Januar~, 2009, and shall expire on
lst da of December, 2013, unless extended by the City
the 3 y , ,
of Port Arthur, as delineated in Section 5.
Section 26. Com an Obli ations. Notwithstanding
. ,
hin contained herein to the contrary, the Company
anyt g
shall in no event be obligated hereunder (i) to amend or
otherwise change, or attempt to amend or otherwise change,
an a reement to which t~e Company is, a party as of the
Y g
date hereof, or ~ii) to hire or retain any person, or to
award an contract for materials, supplies, equipment ~or
Y
services to any vendor, supplier, professional, contractor
or subcontractor,~ unl~ess, in the Company's sole discretion,
A such ~ erson is qualified, ~ is willing to perform the
() p
- ~ .
work and satisfies all of the Company's normal standards
, ,
29
J~
D F
T
for employment, and (B) such vendor, supplier,
~
professional, contractor or subcontractor is qualified,
financially sound, has an adequate safety record, 3s
willin to erform the work, or provide the materials or
g p
services in the time required and in a competitive manner,
,
and is the lowest qualified responsive bidder who meets all~
the appl~icable bid specifications. .
.~
30
BY:
day o f
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
~
~
~
for~ oin instrument, and acknowledged to me that he '
g g ~
~
;
~
,~
executed the same as the act and deed of INEOS ~
~
,,
P
, I
for the purposes and considerations therein ~
~
. ~
~
~
expressed, and the capacities therein stated. ~'
i;
~
I
u
'.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE j
~
~
;
~,
~
day of ~ , A.I~. , 20~0~8 . ~
~
t
N;OTARY PUBLIC, STATE OF TEXAS
SIGNED AND AGREED to on the
, 2008.
"INEOS ~
31
80409448.1/10809339
/~
FT
D
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 ~
~p~ ME the undersigned Notary Public,. on this
BE ,
day
Ste hen Fitz ibbons; City Manager
personall.y appeared p g of
' of Port Arthur, known to me to be the person whose
the City
~ ,
~ ' the ~~ore oing instrument,
name ls ascrlbed to , g and
~ ~ he executed the same as the act
acknowledged to me that and
' Port~ Arthur, ~for~ the purposes
deed of the City of and
' ions~ therein expressed,~ and the capacities ~
conslderat ,
therein stated.
ER MY HAND AND SEAL OF OFFICE, THIS THE
GIVEN UND
day of , A.D., 2008.
NOTARY PUBLIC, STATE OF TEXAS
~~
~ ~ 32
80449448.1/10809339
~
F
LIST OF ATTACHMENTS
•"A" Area of land owned by the Company
•"B" ~ Description of owners of property
33
80409448.1/10809339