HomeMy WebLinkAboutPR 22599: IDA WITH AIR PRODUCTS, LLC P.R. No. 22599
05/26/2022 ht
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE
AN INDUSTRIAL DISTRICT AGREEMENT (IDA) WITH AIR
PRODUCTS, LLC
WHEREAS, Air Products, LLC has informed the City of Port Arthur of their plans to
design and construct a new 65MMSCFD gas separation and pressure swing adsorption
(PSA) manufacturing plant within the Motiva Refinery and therefore, requests to enter into
a separate Industrial District Agreement (IDA) solely for this purpose; and
WHEREAS, pursuant to Sections 42.044 and 212.172 of the Texas Local
Government Code, and Article 1, Sections 5 and 6, of the City's Charter, the City Council
deems it to be in the best interests of the citizens of Port Arthur to enter into an IDA with
Air Products, LLC.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1. That the facts and opinions in the preamble are true and correct.
Section 2. That the City Council hereby authorizes the City Manager to execute an
IDA with Air Products, LLC exclusively for the construction of a new gas separation and
pressure swing adsorption (PSA) manufacturing plant, in substantially the same form as,
attached hereto as Exhibit "A".
Section 3. That a copy of the caption of this Resolution be spread upon the
Minutes of the City Council.
s.pr22599 Air Products, LLC
READ, ADOPTED AND APPROVED on this day of , A.D.,
2022, at a Meeting of the City Council of the City of Port Arthur, by the following vote:
AYES:
Mayor:
Councilmembers:
NOES:
Thurman Bill Bartie,
Mayor
ATTEST:
Sherri Bellard,
City Secretary
APPROVED AS TO FORM:
al cia no,
i Atto n
APPROVED FOR ADMINISTRATION:
Ron Burton,
City Manager
s.pr22599 Air Products, LLC
EXHIBIT "A"
WILL BE PRESENTED AT OR BEFORE
THE COUNCIL MEETING
s.pr22599_Air Products, LLC
EXHIBIT "A"
s.pr22599 Air Products, LLC
STATE OF TEXAS §
§
COUNTY OF JEFFERSON §
INDUSTRIAL DISTRICT AGREEMENT
This INDUSTRIAL DISTRICT AGREEMENT (this "Agreement") is made
and entered into by and between the City of Port Arthur
(hereinafter referred to as the "City") , a home rule municipality
governed under the laws of the State of Texas and Air Products LLC
(hereinafter referred to as the "Property Owner") .
WHEREAS, the Property Owner wishes to lease real property
located in the City' s extraterritorial jurisdiction and construct
a new gas separation and pressure swing adsorption ("PSA")
manufacturing plant (hereinafter referred to as "The Project" and
described in more detail in Exhibit "A") and would like to enter
into an Industrial District Agreement solely for that purpose; and
WHEREAS, pursuant to Section 42 . 001 of the Texas Local
Government Code, the Legislature declares it the policy of the
State of Texas to designate certain areas as the extraterritorial
jurisdiction of municipalities to promote and protect the general
health, safety, and welfare of persons residing in and adjacent to
the municipalities; and
WHEREAS, the Extraterritorial Jurisdiction/Industrial
District (hereinafter referred to as the "ETJ") of the City is the
unincorporated area that is contiguous to the corporate boundaries
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
of the City and that is located within 3-1/2 miles of the
boundaries of the City; and
WHEREAS, pursuant to Section 42 . 044 of the Texas Local
Government Code (the "TLGC) , the governing body of a municipality
may designate any part of its extraterritorial jurisdiction as an
industrial district and may treat the designated area in a manner
considered by the governing body to be in the best interests of
the municipality; and
WHEREAS, the Property Owner owns and/or leases land that is
located in the ETJ of the City which was previously designated as
an industrial district . Exhibit "B" represents a true, correct and
complete legal description and map depiction of said land owned in
fee by and/or leased by the Property Owner (hereinafter referred
to as the `Affected Area") ; and
WHEREAS, pursuant to Section 42 . 044 of the Texas Local
Government Code, the City may make written agreements with owners
of land in an industrial district; and
WHEREAS, this Agreement is authorized under Sections 43 . 0116
and 212 . 172 of the Texas Local Government Code, Vernon' s Texas
Code Annotated and Article I, Sections 5 and 6 of the City' s
Charter, and the parties agree that the terms of this Agreement
are reasonable, appropriate, and not unduly restrictive of
business activities; and
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
WHEREAS, this Agreement includes provisions concerning being
tangible property, real, personal and mixed owned and/or leased by
the Property Owner in the Affected Area; and
WHEREAS, in previous Industrial District Agreements, the City
has articulated its concern regarding the unemployment rate of
Port Arthur residents in an effort to maximize job opportunities
for Port Arthur residents and contracting opportunities for Port
Arthur businesses and contractors; and
WHEREAS, the City created the Port Arthur Business Enterprise
(PABE) program, with a goal of improving opportunities for its
residents and businesses; and
WHEREAS, the City is interested in working with industry to
obtain information on current hiring and procurement efforts,
including results, and to increase employment opportunities for
Port Arthur residents and procurement for Port Arthur businesses;
and
WHEREAS, the City wants to encourage additional new capital
investments and job creation at the location as it pertains to the
aforementioned Project; and
WHEREAS, the Property Owner plan to make an estimated capital
investment of approximately $85-90 million in the Affected Area;
and
WHEREAS, the City and the Property Owner desire to enter into
an Industrial District Agreement with respect to the Affected Area
in the City' s ETJ; and
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
WHEREAS, the Property Owner agree to provide written reports
to the City regarding its hiring and procurement practices on a
semi-annual basis as it pertains to the Project (as defined in
Exhibit "A") ; and
WHEREAS, the City desires to offer an incentive to the
Property Owner as it pertains to the Project if it participates in
an Employment and Training Roundtable Program and meets certain
milestones based on increases in the hiring of Port Arthur
residents and the contracting opportunities afforded Port Arthur
businesses; and
WHEREAS, this Agreement shall be effective and binding on the
parties hereto upon execution hereof on behalf of all parties to
this Agreement, effective January 1, 2023 and governs the City
contractual relationship with the Property Owner; and
WHEREAS, the City finds that the provisions set forth in this
Agreement are in the best interests of the City and beneficial to
the general health, safety, and welfare of its residents; and
WHEREAS, the Property Owner find that this Agreement is
beneficial to its business operations .
NOW, THEREFORE, in consideration of the premises and the
mutual agreements of the parties contained herein, the City and
the Property Owner agree with each other as follows as it pertains
to the Affected Area described in Exhibit "B" :
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Section 1 : ETJ Status, City Services and Code Enforcement
(a) Pursuant to Section 42 . 044 of the TLGC, and subject to
the terms and provisions of this Agreement, the City agrees and
guarantees that during the term of this Agreement, the Affected
Area shall be immune from annexation and shall continue to retain
its status as part of the City' s ETJ, except as otherwise expressly
provided herein.
(b) The Property Owner and the City agree that the City shall
have no obligation to provide City services to the Property Owner
in the Affected, Area with respect to the project and that the City
will not extend any services to Property Owner in the Affected
Area with respect to the project (unless otherwise provided
herein) . The City will not require the Property Owner to adhere to
City codes such as the regulation of plats and subdivisions of
land, the imposition of building, electrical, or plumbing
inspections, and related code requirements . The Property Owner
agrees not to imprudently discharge storm water from the project
facilities located in the Affected Area or contribute to flooding
on adjacent property from the project facilities located in the
Affected Area.
Section 2 . Description of Affected Area and Reports
(a) The City hereby designates the portion of the City' s ETJ
described and depicted on Exhibit "B", which contains all of the
land owned and/or leased by the Property Owner in the City' s ETJ,
as an Industrial District. The Property Owner hereby certifies
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
that Exhibit "B" represents a true, correct and complete legal
description and map depiction of all of the land owned and/or
leased by the Property Owner in the "Affected Area" . This agreement
solely relates to the values assigned for the Project as delineated
in Exhibit "A" and located within the ETJ/Industrial District in
Exhibit "B"; and
(b) On or before May 1 of each year during the term of this
Agreement, the Property Owner shall furnish to the City a written
report listing the names and addresses of all persons and entities
who store any tangible personal property on the land in the
Affected Area with the Property Owner with respect to the
Project (hereinafter referred to as "products in storage") , and are
in the possession or under the management of Property Owner on
January 1 of such year, and further giving a description of such
products in storage. The Property Owner shall file all reports
required by the chief appraiser of the Jefferson County Appraisal
District ("JCAD") under Section 22 . 04 of the Texas Property Tax
Code relating to (i) third parties' property that is in the
Affected Area with respect to the Project and in the Property
Owner' s possession or under the Property Owner' s management by
bailment, lease, consignment, or other arrangement, and (ii)
storage space leased or otherwise provided to third parties for
storage of personal property in the Affected Area with respect to
the Project.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Section 3 . Payments by the Property Owner
(a) The City levies ad valorem taxes for general revenue
purposes on the value of land, improvements, and certain personal
property located within its corporate limits .
If the Affected Area were located within the corporate limits
of the City, it would be subject to such levy.
As part of the consideration for the City' s agreements
contained herein, the Property Owner agrees to make a payment to
the City in lieu of taxes with respect to the Project (hereinafter
referred to as "In Lieu of Payment") for each "Tax Year" (as
hereinafter defined) during the term of this Agreement "Payment
Period (as hereinafter defined) as provided herein. As used herein,
the term "Tax Year" has the meaning assigned to that term in
Section 1. 04 of the Texas Property Tax Code (i. e. , the calendar
year) .
(b) On or before October 15th of each Tax Year during the
term of this Agreement, and except as otherwise provided in
Sections 6 and 19, the Property Owner will remit to the City an
"In Lieu of Payment" equal to the applicable percentage for the
tax year as delineated below of the "Taxable Value" (as hereinafter
defined) multiplied by the City' s property tax rate for such Tax
Year as it pertains to the Project.
For avoidance of any future doubt or confusion, whatever "In
Lieu of Payment" Property Owner makes under this Agreement with
respect to the Project supplants and is to the exclusion of any
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
"In Lieu of Payment" which might otherwise be due under any
existing Industrial District Agreement with respect to the
Project .
The Parties agree to the following Discounted Rate Table as
it pertains to the Project:
$85-90 million
Tax Year (beginning January 1St) investment Discount Year
2023 Construction Period 25% Year 1
2024 Post Construction 60% Year 2
2025 Post Construction 70% Year 3
2026 Post Construction 80% Year 4
2027 Post Construction 90% Year 5
The Property Owner will report and certify to the City the
requisite investment of the Project within 120 days after the
completion of the Project (or 120 days after the Effective Date,
whichever is later) . In the event the investment of the Project
does not exceed $85-90 million, the Parties agree to revisit the
Discounted Rate Table and utilize the discounted rate applicable
to the amount invested under the City' s IDA Policy.
For illustration purposes only, the "In Lieu of Payment" for
Tax Year 2023 would be calculated based upon a discounted value of
25% . The "In Lieu of Payment" is an amount equal to 25% of the
Taxable Value multiplied by the City' s property Tax Rate for such
Tax Year.
(c) On or before October 1st of each Tax Year during the
Payment Period, the City will submit to the Property Owner a
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
statement setting forth the calculation of the In Lieu of Payment
due from the Property Owner for such Tax Year.
(d) For the purposes of this Agreement, "Applicable
Percentage" means, for any Tax Year during the Payment Period, a
percentage equal to amount specified in the table referenced in
Section 3b.
(e) For the purposes of this Agreement, "Construction
Period" means the one-year period beginning on January 17, 2023 in
which construction of the Project commences and ending on December
31, 2024 .
(f) For the purposes of this Agreement, "Post-Construction
Period" means the four (4) year period beginning with and including
the Tax Year immediately following the end of the Construction
Period and ending with and including the fifth (5th) Tax Year
following the conclusion of the Construction Period (December 30,
2023) .
(g) For the purposes of this Agreement, "Payment Period"
means the five (5) year period beginning with and including the
first (1st) Tax Year of the Construction Period and ending with and
including the fourth (4th) Tax Year of the Post-Construction Period.
(h) For the purposes of this Agreement, "Taxable Value"
means, for any Tax Year, the appraised value of the Property
Owner' s real property, tangible personal property or mixed that is
included in the Project and situated on the Affected Area as
determined for such Tax Year by the chief appraiser of JCAD for
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
the property tax purposes of Jefferson County, Texas as of January
1st of such Tax Year, less the exempt value of pollution control
property included in the Project and as so determined. The Appraised
Value also includes the appraised value of any property included
in the Project and that is located in a foreign trade zone or any
other type of federal, state or local zone as it pertains to the
Project.
Additionally, the Property Owner' s Taxable Value for the
purposes of this Agreement for any such Tax Year will include the
Taxable Value of all tangible personal property located and stored
on the Affected Area as it pertains to the Project that is owned
by third parties and is in the possession or under the management
of the Property Owner by bailment, lease, consignment, or any other
arrangement with the Property Owner ("products in storage") on
January 1 of such Tax Year.
(e) For illustration purposes only, assume for Tax Year 2023
during the term of this Agreement that the Taxable Value is
$200, 000, 000 and that the City' s property tax rate for such Tax
Year is $ . 792 per $100 of Taxable Value. Subject to the provisions
of Section 6, the In Lieu of Payment for such Tax Year under this
Agreement would be $396, 000 calculated as follows :
$200, 000, 000 X 25% X $ . 792/$100 = $396, 000 . 00
Similarly, for illustration purposes only, assume for Tax
Year 2028 during the term of this Agreement that the Taxable Value
of the Project is $125, 000, 000 and that the City' s property tax
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
rate for such Tax Year is $ . 792 per $100 of Taxable Value. Subject
to provisions of Section 6, the In Lieu of Payment for such Tax
Year would be $1, 267, 200 . 00 calculated as follows :
$200, 000, 000 X 80% X $ . 792/100 = $1, 267, 200 . 00
Section 4 . Port Arthur Local Business Enterprise Program
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.
Therefore, the City created the Port Arthur Local Business
Enterprise Program (the "PABE Program") which is designed to
promote spending with qualified Port Arthur local business
enterprises (each an "LBE" as such term is defined below) by
companies that have industrial district agreements with the City,
as well as to increase the diversity of Port Arthur businesses
from which such companies procure goods and services so that the
pool of such businesses is representative of the business community
at large. The Property Owner agrees to participate in the PABE
Program.
As used herein, "LBE" means a Port Arthur business (including,
but not limited to, a Port Arthur minority and/or women owned
business enterprise ("MWBE") , a Port Arthur historically
underutilized business ("HUB") , and a Port Arthur disadvantaged
business enterprise ("DBE") ) that has been certified as a LBE under
the procedures and criteria specified in the PABE Program as
determined by the City Council of the City, but such term shall
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
not include any Port Arthur business that has ceased to be so
certified. The City and the Property Owner 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 goals and objectives for the PABE 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) (referred to herein as the "PABE Facilitator") .
Notwithstanding anything contained in this Agreement to the
contrary, the Property Owner shall in no event be obligated under
any provision of this Agreement (i) to amend or otherwise change,
or attempt to amend or otherwise change, any agreement to which
the Property Owner 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 Property
Owner' s sole discretion, (A) such person is qualified, is willing
to perform the work, and satisfies all of the Property Owner ' s
normal standards for employment, and (B) such vendor, supplier,
professional, contractor or subcontractor is qualified,
financially sound, has an adequate safety record, is willing to
perform the work, or provide the materials or services, in the
time required and in a competitive manner, and is the lowest
qualified responsive bidder who meets all the applicable bid
specifications .
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
The Property Owner agrees that it will participate in the
PABE Program during the term of this Agreement and strongly
consider the use of certified Port Arthur businesses to facilitate
the goals of the PABE Program. The terms and conditions of the
PABE Program are delineated on the City' s official website.
The Property Owner, together with the City' s staff, will also
participate in a Semi-Annual Employment Roundtable Program
facilitated by the City. The goal of the Semi-Annual Employment
Roundtable Program is to address employment and training issues
that are essential to the hiring of Port Arthur residents as
employees of the Property Owner and its Nested Contractors (as
hereinafter defined) . The Semi-Annual Employment Roundtable
Program will also address issues related to improving the workforce
within the City to meet the needs of industry.
As used herein, the term "Nested Contractor" means an employer
that regularly operates full time at the Affected Area providing
personnel or services under contract with the Property Owner.
Section 5 . Reporting Requirements
(a) For each of the Tax Years 2023 through 2027, the Property
Owner agrees to submit on a semi-annual basis a report, attached
hereto as Exhibit "D" (each, a "Report") in accordance with the
procedures, and providing the information specified, herein with
respect to the hiring of qualified Port Arthur residents by the
Property Owner and its Nested Contractors, and the retention of
PABE' s by the Property Owner, as the same relate to the Affected
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Area. Each six-month period for which a Report is required herein
is referred to herein as a "Reporting Period. "
Section 6 . Performance Based Incentives for Discounts as an
Economic Incentive Program pursuant to Chapter 380 of the
Texas Local Government Code
In General
(a) The calculation of the In Lieu of Payment under Section
3 is based in part upon the application of a percentage as
delineated in Section 3 for the Corresponding Tax Year (the
"Discounted Rate") .
For any Tax Year during the term of this Agreement, the
Discounted Rate may be reduced as provided in this Section 6 upon
verification and approval by the governing body of the City that
one or more of the performance-based milestones described in this
Section 6 were reached for the Report Period or Report Periods
covered by the Report or Reports applicable for such Tax Year as
designated below (such period or periods for any Tax Year being
referred to herein as the "Milestone Period" as designated below) :
Tax Year Report Period or Milestone Period
Report Periods Ending
on the following:
2023 (Year 1) June 30, 2023 January 1, 2023 to
June 30, 2023
2024 (Year 2) December 31, 2023, July 1, 2023 to
June 30, 2024 June 30, 2024
2025 (Year 3) December 31, 2024, July 1, 2024 to
June 30, 2025 June 30, 2025
2026 (Year 4) December 31, 2025, July 1, 2025 to
June 30, 2026 June 30, 2026
2027 (Year 5) December 31, 2026, July 1, 2026 to
June 30, 2027 June 30, 2027
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
The information used to calculate the performance-based
milestones described in this Section will be reported in the
manner outlined in Section 5 of this Agreement .
Hiring Milestones
(b) For purposes of this Agreement, the term "Report Period
Hiring Percentage" means, for any Report Period during the term of
this Agreement, a percentage equal to the quotient determined by
dividing (X) by (Y) where:
(X) = an amount equal to the sum of:
(i) the total number of expansion employees
employed by the Property Owner at the
Facility on the last day of such Report
Period who were Port Arthur residents on such
date; plus
(ii) the total number of expansion employees
employed by the Property Owner' s Nested
Contractors for projects at the Facility on
the last day such Report Period who were Port
Arthur residents on such date; and
(Y) = an amount equal to the sum of:
(i) the total number of expansion employees
employed by the Property Owner at the
Facility on the last day of such Report
Period; plus
(ii) the total number of expansion employees
employed by the Property Owner' s Nested
Contractors for projects at the Facility on
the last day of such Report Period.
The Hiring Milestone calculation referenced in this section
only applies to employees that are hired for the Project . Those
employees that work at the existing plant are not included in this
calculation.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
(c) For purposes of this Agreement, the term "Hiring
Milestone" means:
(i) for the Milestone Period applicable to the Tax Year
2023, the Report Period Hiring Percentage for the
Report Period ending June 30, 2023; and
(ii) for the Milestone Period applicable to any of the
Tax Years 2023, 2024, 2025, 2026, and 2027 the sum
of the Report Period Hiring Percentages for the
Report Periods included in such Milestone Period
divided by two (2) .
(d) Upon verification and approval by the governing body of
the City that one of the Hiring Milestones (as hereinafter defined)
was reached for the Milestone Period applicable to a Tax Year, the
Discounted Rate for such Tax Year shall be reduced by ten (10)
percentage points (10%) based upon the following schedule (the
"Hiring Milestones") :
Construction Period Percentage Point Reduction*
Milestone Hiring Percentage
for the Milestone Period
applicable to such Tax Year
25% of those employed are 10%
Port Arthur Residents
Post-Construction Period Percentage Point Reduction*
Milestone Hiring Percentage
for the Milestone Period
applicable to such Tax Year
25% of those employed are 10%
Port Arthur residents and
10% of the new Hires are
Port Arthur Residents
This milestone includes those individuals working as Permanent employees
of the Company and those employed by Nested Contractors that are
specifically working for the Project.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
PABE Spend Milestones
(e) Prior to the first day of each Report Period, the City
shall cause the PABE Facilitator to provide the Property Owner
with a list of certain PABE' s for such Report Period selected and
compiled by the PABE Facilitator in accordance with the next
sentence (such PABE' s for any such Report Period being referred to
herein as the "Designated PABE' s") . In preparing the list of
the Designated PABE' s for any Report Period, the City shall cause
the PABE Facilitator:
(i) to categorize the PABE' s on such list as either
commercial, industrial, or both commercial and
industrial;
(ii) in the case of PABE' s categorized as commercial,
to only include PABE' s that specialize in retail
trade, service, professional, office or similar
goods and/or services that can be utilized by the
Property Owner at the Project; and
(iii) in the case of PABE' s categorized as industrial,
to only include PABE' s whose primary business
activity is classified under the North American
Industry Classification System (NAICS) to an
industry that provides goods and/or services that
can be utilized by the Property Owner at the
Project.
(f) For purposes of this Agreement, the term "PABE Spend
Amount" means an amount equal to (i) the dollar amount of contracts
awarded and/or purchases made by the Property Owner to Designated
PABE' s for goods and/or services during the eight (7) semi-annual
Reporting Periods included in the Tax Years 2023 through 2027 and
the semi-annual period January 1, 2023, through June 30, 2027
(collectively, the "Report Period") .
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
(g) For purposes of this Agreement, the term "Report Period
PABE Spend Percentage" means, for any Report Period during the
term of this Agreement, a percentage equal to the quotient
determined by dividing (X) by (Y) where:
(X) = the dollar amount of contracts awarded and/or
purchases made as it pertains to the Project,
during such Report Period by the Property Owner or
its affiliates with Designated PABE' s for goods
and/or services; and
(Y) = the total dollar amount of contracts awarded and/or
purchases made as it pertains to the Project,
during such Report Period by the Property Owner or
its affiliates .
(h) For purposes of this Agreement, the term "Milestone PABE
Spend Percentage" means for the Milestone Period applicable to
each of the Tax Years (1) 2023, (2) 2024, ( 3) 2025, (4) 2026, and
(5) 2027 the sum of the Report Period PABE Spend Percentages for
the Report Periods included in such Milestone Period.
(i) Upon verification and approval by the governing body of
the City that the PABE Spend Milestones (as hereinafter defined)
was reached for the Milestone Period applicable to a Tax Year, the
Discounted Rate for such Tax Year shall be reduced by ten (10)
percentage points (10%) based upon the following table (the "PABE
Spend Milestones") :
Construction Period Percentage Point Reduction*
PABE Milestone Percentage
applicable to such Tax Year
4% of construction costs are 10%
spent with PABE members
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Post-Construction Period Percentage Point Reduction*
PABE Milestone Percentage
applicable to such Tax Year
4% of purchases made after 10%
construction are spent with
PABE members
Notifications
(i) For each Tax Year during the term of this Agreement,
the City will verify the Report or Reports (as applicable)
submitted by the Property Owner for the Report Period or Report
Periods (as applicable) included in the Milestone Period
applicable to such Tax Year. If for any such Tax Year the City
determines that such Report or Reports fail to substantially comply
with the reporting obligations under Section 5, then the City shall
provide the Property Owner with a written notice of the facts which
the City believes have caused such Report or Reports to fail to
substantially comply with such reporting obligations, and the
Property Owner shall have thirty (30) days to cure such failure.
If the City does not provide any such written notice with respect
to the Report or the Reports for the Report Period or Report
Periods included in a Milestone Period within ninety (90) days
after the last day of such Milestone Period, then for purposes of
this Agreement (including Section 5) , such Report or Reports shall
be deemed to be in substantial compliance with the reporting
obligations under Section 5.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
On or before October 1 of each such Tax Year, the City shall
notify the Property Owner whether it met any of the Hiring
Milestones and/or PABE Milestones . The information compiled by
the City in connection with any such verification shall be made
available to the Property Owner upon request .
Section 7 . Back-up Fire and Police Assistance
If requested orally or in writing by the Property Owner, the
City' s Fire Department may provide back-up Fire Suppression
Support as determined by the City' s Fire Chief, and the City' s
Police Department may assist in providing an evacuation route and
traffic control, in the case of a fire or a chemical release at
the Property Owner' s facilities located in the Affected Area, at
no cost or expense to the Property Owner. Nevertheless, the
Property Owner agrees to 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 contributes to flooding
on adjacent property. The Property Owner shall have in place an
evacuation plan for the Property Owner' s facilities located in the
Affected Area that is consistent with industry standards and/or is
required by applicable federal and state laws, and the health and
safety laws of the City of which the Companies have been notified
by the City. The Property Owner shall employ or provide sufficient
primary fire suppression response, as well as control and abate
chemical releases . The Property Owner shall provide the City' s
Fire Chief and Police Chief with Emergency Response Plans for any
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
plants, refineries, chemical operations or other hazardous
operations that take place in the Affected Area. 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 cleanup is
required of the City, the Property Owner agrees to 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.
The Property Owner shall immediately notify the central
dispatch office which serves the City' s Fire Chief, Police Chief,
and the City' s Emergency Management Coordinator of all incidents
involving fires, serious injuries, deaths, chemical releases and
flooding that create a health and safety hazard to the community
or that exceed permissible exposure limits under applicable state
or federal laws .
Section 8 . Annexation for Health, Safety and Welfare Reasons
It is specifically stipulated that nothing in this Agreement
will in any manner limit or restrict the authority of the City to
annex all or part of said lands and facilities during the period
of this 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 any
annexation of the land in the Affected Area will not be made for
revenue purposes only.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Section 9 . Annexation Due to Legislative Action
Notwithstanding any other provision in this Agreement, the
parties agree and consent that the City may annex the Affected Area
if a bill is enacted by the Texas Legislature which limits or
restricts the authority of the City to annex all or part of the
land and improvements in the Affected Area. In the event of
annexation under this Section 9 or Section 8, (i) the Property Owner
will not be required to make further payments under this Agreement
for any Tax Year commencing after annexation with respect to the
property so annexed, but shall nevertheless be obligated to make
full payments for the Tax Year during which such annexation becomes
effective if the annexation becomes effective after January 1st of
such Tax Year, and (ii) the Property Owner 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 Payment with respect to the
Affected Area. If for any reason the City is prevented from annexing
the Affected Area and if the parties cannot reach an agreement on
a new payment schedule on a new "in lieu of tax" agreement, then
unless the City has extended this Agreement under the circumstances
described in the last sentence of this Section 9, the Property Owner
agrees that it will continue to pay to the City the In Lieu of
Payments delineated in Section 3 of this Agreement until December
31, 2028 and will, for each Tax Year thereafter, continue to
annually pay the City an "in lieu of tax" payment equal to eighty
percent (80%) of the Taxable Value of the Property Owner' s real and
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
tangible personal property located in the Affected Area as
determined by JCAD for such Tax Year multiplied by the City' s
property tax rate for such Tax Year for so long as the Property
Owner or its assignees and successors or affiliates own such
property. Payments will be due on October 15th of each year. In
the event the City is prevented from annexing the Affected Area in
the legislative circumstances described in the first sentence of
this Section 9, then pursuant to Sections 42 . 044 and 212 . 172 Local
Government Code, the Property Owner agrees and consents that the
City has the option, in the City' s sole discretion, to extend this
Agreement and that the Property Owner will continue to annually pay
the City "in lieu of tax" payments, as denoted above, for successive
periods, for a total duration not to exceed 45 years, or the maximum
period allowed by law, whichever is longer.
Section 10 . Electrical Usage
The Property Owner will provide the City with information as
to the Property Owner' s electrical consumption at the Affected
Area 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 Affected Area.
The information provided by the Property Owner to the City
regarding such electrical consumption and metering locations shall
be held confidential by the City to the fullest extent permitted
under applicable law. If the City receives a request for such
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
information, the City will notify the Property Owner and the
Property Owner will be afforded an opportunity to file a brief
with the Texas Attorney General setting forth the reasons for
exclusion of all or any portion of such information from the
requirement to be released pursuant to the Texas Public Information
Act.
Section 11 . Right to Annexation at the Expiration of this
Agreement
The parties agree that the City has the sole discretion, after
October 1, 2027 to annex the property in the Affected Area or to
enter into negotiations with the Property Owner regarding an
industrial district agreement covering periods after the
expiration of this Agreement .
If for any reason any portion of the Affected Area is annexed
prior to December 31, 2027, and as an economic incentive program
as allowed under Chapter 380 of the Texas Local Government Code,
the City will promptly remit to the Property Owner the portion of
the property taxes paid to the City with respect to such annexed
property that are in excess of the In Lieu of Payment that would
have been paid to the City with respect to such annexed property
if such annexation had not occurred. This partial remission of
taxes (Chapter 380 Economic Incentive Program) will only be
applicable until December 31, 2027 .
Section 12 . Right to Annexation pursuant to Chapter 43 of the
Texas Local Government Code
The present owners and lessees of the land, improvements, units,
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
equipment, inventory, and all other property located in the
Affected Area and pertaining to the Facility are described in
Exhibit "A", except for any owner or lessee of such property the
aggregate Taxable Value of which is not reasonably expected as of
the date of this Agreement to exceed $250, 000 . 00 (the "Excluded
Persons") . The City reserves the right to annex any tract or
parcel with the minimum required adjacent area, as per Chapter 43
of the Texas Local Government Code, if any of such owners or
lessees other than the Excluded Persons do not pay an In Lieu of
Payment for its interest in such land, improvements, units,
equipment, inventory, and all other property located in the
Affected Area and pertaining to the Facility. Nothing contained
herein shall be construed to prohibit or prevent the Property Owner
from paying the other owners' or lessees' In Lieu of Payment
required by this Agreement 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 Affected Area set
forth on Exhibit "A" for all purposes of this Agreement, and the
total In Lieu of Payment will be reduced accordingly to accurately
reflect such annexation.
Section 13 . Assignment
If the Property Owner desires to assign all or a portion of
this Agreement to any person, the Property Owner shall provide
written notice of such assignment to the City and shall receive
the written consent of the City Council, by a duly adopted
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Resolution, which will not be unreasonably withheld, delayed or
conditioned. The Property Owner shall provide a description of
the assignee and such other information as is reasonably requested
by the City 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 Property Owner
shall be relieved of its obligations under this Agreement to the
extent that an assignee expressly assumes the Property Owner' s
obligations hereunder. Subject to the preceding, this Agreement
shall inure to the benefit of and be binding upon the parties
hereto and its respective successors and assigns.
Section 14 . Other Relief Granted
It is agreed by the parties to this Agreement that the
Property Owner and the City have the right to seek equitable
relief, including specific performance of this Agreement .
Section 15 . Inspections
The Property Owner shall allow a reasonable number of
authorized employees and/or representatives of the City who have
been designated and approved by the governing body of the City to
have access to the Affected Area during the term of this Agreement
to inspect the property and any improvements thereon to 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 such manner as complies with the Property
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Owner' s safety and security standards and rules. All such
inspections will be made with one or more representatives of the
Property Owner. The Property Owner may require any person
conducting such an inspection to execute a confidentiality
agreement before entering the Affected Area.
The information provided by the Property Owner to the City or
otherwise obtained by the City in connection with any such
inspection shall be held confidential by the City to the fullest
extent permitted under applicable law. If the City receives a
request for such information, the City will notify the Property
Owner and the Property Owner will be afforded an opportunity to
file a brief with the Texas Attorney General setting forth the
reasons for exclusion of all or any portion of such information
from the requirement to be released pursuant to the Texas Public
Information Act.
Section 16. Port Arthur Industrial Group
The Property Owner agrees that it will participate in the
Port Arthur Industrial Group during the term of this Agreement and
for so long as the Port Arthur Industrial Group is a viable
organization in order to assist in the establishment of
apprenticeship, internship, mentoring and/or educational programs
and projects for the training of Port Arthur residents for
permanent jobs in the Port Arthur area. The Property Owner further
agrees to request and encourage its Nested Contractors to establish
and fund their own apprenticeship, internship, mentorship and/or
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
education programs and projects for the training of Port Arthur
residents for permanent jobs in the Port Arthur area.
Section 17 . Inspection of Records
The City reserves the right to review the Property Owner' s
records to ascertain the accuracy of reports filed by the Property
Owner in accordance with this Agreement .
Section 18 . Undocumented Workers
The Property Owner certifies that it has not, and 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) or authorized under law to be employed in that
manner in the United States . The Property Owner 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 Property
Owner of a violation. The Property Owner acknowledges the City
may bring a civil action as 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. The Property Owner
will also promptly report to the City any "undocumented worker"
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
that is improperly retained by its contractors or subcontractors
at the Project .
Section 19 . Property Tax Information, Credits and Refunds
With respect to the land, improvements, units, equipment and
all other property located in the Affected Area for each of the
Tax Years 2023 through 2027, at the City' s request the Property
Owner will, to the extent such property has not been annexed by
the City, provide to the Director of Finance of the City, at the
address specified in Section 27, no later than September 15th of
such Tax Year, a copy of the non-privileged/non-confidential
rendition which the Property Owner filed with the Jefferson County
Appraisal District. At the City' s request, the Property Owner
shall also provide the following to the Director of Finance of the
City at such address with respect to such Tax Years :
• each notice of appraised value received by the
Property Owner from the Jefferson County Appraisal
District with respect to such property;
• any notice of protest filed by the Property Owner
with the Jefferson County Appraisal Review Board
("ARB") with respect to such property within thirty
(30) days after such filing;
• any informal settlement or final ARB order
determining protest with respect to such property;
• any pleadings filed by the Property Owner 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.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Pending final determination of any tax protest filed by the
Property Owner with the ARB, or appeal thereof, with respect to
any Tax Year during the term of this Agreement, the Property Owner
shall pay to the City, on or before October 15th of such Tax Year,
an amount equal to the In Lieu of Payment paid to the City for the
immediately preceding Tax Year. Upon the final determination of
such protest or appeal thereof, the Property Owner' s In Lieu of
Payment liability hereunder for such Tax Year shall be calculated
based on the Taxable Value for such Tax Year that reflects such
final determination. If the In Lieu of Payment so calculated for
such Tax Year exceeds the In Lieu of Payment previously paid by
the Property Owner for such Tax Year, then the City shall submit
to the Property Owner a statement setting forth the calculation of
such excess, and the Property Owner shall pay the amount of such
excess, without interest or penalty, to the City within thirty
(30) days after the Property Owner' s receipt of such statement. If
the In Lieu of Payment so calculated for such Tax Year is less
than the In Lieu of Payment previously paid by the Property Owner
for such Tax Year, then the City shall credit dollar-for-dollar
toward future In Lieu of Payments the difference between the amount
actually paid hereunder and the amount for which the Property Owner
is determined to be liable, without interest, it being understood
and agreed that to the extent there are insufficient future In
Lieu of Payments under this Agreement against which to credit such
difference, the remaining balance of such difference shall be
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
carried forward and credited dollar-for-dollar against any in lieu
of tax payments and other amounts due to the City under any
industrial district agreement between the Property Owner and the
City covering a period or periods after the expiration of this
Agreement until utilized in full.
Section 20 . Notice of Default
Notwithstanding anything to the contrary contained in this
Agreement, in the event of any breach by the Property Owner of any
of the terms or conditions of this Agreement, the City shall give
the Property Owner 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 Property Owner 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 Payments on October 15th of
each year. If the Property Owner does not pay the In Lieu of
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 litigation for breach of this Agreement
and to encourage timely payments, the City can seek 100% of all
monies that the City would have received from the Property Owner
if it been within the corporate limits, which include 100% of all
taxes, building permit fees, sales or use taxes, and all franchise
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
fees on cable and electrical usage, interest and penalty thereon,
attorney' s fees, and court costs.
Section 21 . 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 22 . 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; provided however,
that for the avoidance of doubt, payment of the In Lieu of
Payments, the provisions of Section 1 (a) of this Agreement, and
the confidentiality provisions of this Agreement are essential
parts of this Agreement.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Section 23 . Remedies Cumulative
Except as otherwise expressly provided herein, all rights,
privileges, and remedies afforded the parties by this Agreement
shall be deemed cumulative and not exclusive, and the exercise of
any or more of such remedies shall not be deemed to be a waiver of
any other right, remedy, or privilege provided for herein or
available at law or in equity.
Section 24 . 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 25 . 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 26 . Authority
By acceptance of this Agreement and/or benefits conferred
hereunder, the Property Owner represents and warrants that its
undersigned agent has complete and unrestricted authority to enter
into this Agreement and to obligate and bind the Property Owner to
all of the terms, covenants and conditions contained herein.
Section 27 . Notice
Any notice provided in connection with this Agreement shall
be given in writing to the parties hereto by certified mail, return
receipt requested, addressed as follows :
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
TO CITY: TO PROPERTY OWNER:
City Manager Rick Trinkle, Manager Property Tax,
Principal
City Of Port Arthur Air Products LLC
444 4th Street 1940 Air Products Blvd.
Port Arthur, TX 77640 Allentown, PA 18106-5500
WITH A COPY TO: WITH A COPY TO:
City Attorney Greg Maxim
City Of Port Arthur Cummings Westlake, LLC
444 4th Street 16410 N. Eldridge Pkwy
Port Arthur, TX 77640 Tomball, TX 77377
(409) 983-8126 (713) 266-4456
(409) 983-8124
Section 28 . Cancellation
If the Property Owner permanently ceases operation of the
Facility during the term of this Agreement, then the Property Owner
shall have the right, at is sole option, to cancel this Agreement
with ninety (90) days written notice in which case the Property
Owner shall be relieved of all its obligations under this
Agreement, except as to payment of the In Lieu of Payment for the
year of such cancellation.
Section 29. Term
This Agreement is effective the 1st day of January, 2023, and shall
expire on the 31st day of December 31, 2027 .
[SIGNATURE PAGES FOLLOW]
Air Products LLC industrial District Agreement(2023-2027) (5 years)
SIGNED AND AGREED to on the day of ,
2022 .
Air Products LLC
BY:
NAME:
TITLE :
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 Air Products Inc. for the purposes and considerations therein
expressed, and the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE day of
, A. D. , 2022 .
NOTARY PUBLIC, STATE OF TEXAS
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
SIGNED AND AGREED to on the day of , 2022 .
CITY OF PORT ARTHUR, TEXAS
BY:
Ron Burton,
City Manager
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF JEFFERSON §
BEFORE ME, the undersigned Notary Public, on this day
personally appeared Ron Burton, 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. , 2022 .
NOTARY PUBLIC, STATE OF TEXAS
Approved as to form and substance:
Valecia R. Tizeno, City Attorney
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Exhibit "A"
Project Description
Air Product's project is for the design and construction of a 65MMSCFD gas separation and
pressure swing adsorption ("PSA") manufacturing plant. PSA units use beds of solid adsorbent
to separate impurities from hydrogen streams leading to high purity high-pressure hydrogen and
a low-pressure tail gas stream containing the impurities and some of the hydrogen. The beds are
then regenerated by depressurizing and purging
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Exhibit "B"
Legal Description and Map Depiction of the Affected Area
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
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Exhibit "C"
List of Present Owners and Lessees of Property Located in the
Affected Area and Pertaining to the Facility, Except for Excluded
Persons :
Motiva Enterprises, LLC
Air Products LLC Industrial District Agreement(2023-2027) (5 years)
Exhibit "D"
Form of Industrial District Agreement Report
Industrial District Agreement Report
Property Owner's Name
Date of this Report
Report Period(semi-annual
period covered by this Report) From / /20_To /_/20_
Property Nested
Owner Contractors
(A)Total number of employees employed on the last day of the Report Period
who were Port Arthur residents on the last day of the Report Period
(B) Total number of all employees employed on the last day of the Report
Period
(C) Total number of new hires employed during the Report Period who were
Port Arthur residents on their first day of employment
(D)Total number of all new hires employed during the Report Period
(E) Total number of applicants completing the interview process during the
Report Period
(A)Total number of Designated LBE's that:
• were on the approved vendor list of the Property Owner at any time
during the Report Period,and/or
• were invited by the Property Owner during the Report Period to bid
on contracts for goods and/or services
(B)Total number and dollar amount of contracts awarded by the Property
Owner during the Report Period for goods and/or services that the
Property Owner determines could have potentially been obtained from
Designated LBE's:
Total Number of Contracts:
Total Dollar Amount of Contacts: $
(C) Total number and dollar amount of contracts described immediately
(above in II(B)that were awarded to Designated LBE's during the
Reporting Period:
Total Number of Contracts:
Total Dollar Amount of Contacts: $
This Report contains confidential or privileged information. Unauthorized use of this communication is strictly prohibited.
This Report is to be submitted to the Office of the City Manager and copied to the City Attorney during the months of January
and July for the immediately preceding 6 months.The due date(January 31"or July 31")for submitting a Report may be
extended for thirty(30)days upon the written request of the Property Owner.
Air Products LLC Industrial District Agreement(2023-2027) (5 years)