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HomeMy WebLinkAboutPR 16996: AGREEMENT WITH EXXONMOBIL OIL CORPORATION P. R. No. 16996 4/11/12 gt RESOLUTION NO. A RESOLUTION APPROVING AN INDUSTRIAL DISTRICT AGREEMENT WITH EXXONMOBIL OIL CORPORATION. WHEREAS, the City and ExxonMobil Oil Corporation entered into an Industrial District Agreement per Resolution No. 06 -349 for the years 2007 to 2011 at $62,500 per year; and, WHEREAS, the City and ExxonMobil Oil Corporation desire to enter into a new agreement. WHEREAS, NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Manager is herein authorized to execute a new Agreement with ExxonMobil Oil Corporation on behalf of the City in substantially the same form as set forth in Exhibit "A" attached hereto for the years of 2012 to 2016. Section 3. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of , A.D., 2012, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: s.pr16996 1 Mayor Councilmembers NOES: Deloris "Bobbie" Prince, Mayor ATTEST: Sherri Bellard City Secretary APPROVED AS TO FORM: ---- -:-D Valecia 441.. o, City Attorney APPROVED FOR ADMINISTRATION: I John A. Comeaux, P.E., Acting City Manager s.pr16996 EXHIBIT "A" STATE OF TEXAS § COUNTY OF JEFFERSON § INDUSTRIAL DISTRICT AGREEMENT WITH EXXONMOBIL OIL CORPORATION (2012 -2016) WHEREAS, the City of Port Arthur and ExxonMobil Oil Corporation have an Industrial District Agreement which expired on December 31, 2011 (approved per Resolution No. 06 -349); and WHEREAS, the City of Port Arthur approved an extension of the current Industrial District Agreement until January 10, 2012 (approved per Resolution No. 11 -525); and WHEREAS, the City of Port Arthur and ExxonMobil Oil Corporation desire to enter into a new Industrial District Agreement with respect to property until December 31, 2016, described in Exhibit "A" that is located in tracts adjacent to West Port Arthur Road, and within the extraterritorial jurisdiction of the City; and, WHEREAS, these parties wish to address the following: (1) health and safety issues at the tank farm owned by ExxonMobil Oil Corporation, and procedures for the City's review thereof, (2) needs of the City to have a stable revenue source that is not materially affected by appraisal litigation, (3) the need to define backup services provided by the City, and (4) the terms of the new agreement; and, s.ida ExxonMobil corp 2012 1 WHEREAS the Company is in compliance with the Industrial District Agreement approved by Resolution No. 06 -349. All payments that were due on October 15, 2011 have been paid as required; and WHEREAS, the most recent assessed value on this facility by the Jefferson County Appraisal District is 71111111111111; and WHEREAS, the Company, ExxonMobil Oil Corporation, owns the property described in Exhibit "A "; and WHEREAS, the City and the Company, ExxonMobil Oil Corporation, desire to enter into a new Industrial District Agreement for the years 2012 -2016 with respect to the property described in Exhibit "A" that is within the extraterritorial jurisdiction of the City; and WHEREAS, the City and the Company agree that there has been full and adequate consideration for this Agreement; and WHEREAS, this Agreement is authorized under Sections 42.044 and 212.172 Local Government Code, Vernon's Texas Code Annotated and Article 1, Section 5 of the City's Charter, and that the parties agree that the following terms are reasonable, appropriate, and not unduly restrictive of business activities; and WHEREAS, all parties find that this Agreement, as delineated herein, is beneficial to each party. s.ida Exxon1obil corp 2012 2 NOW, THEREFORE, in consideration of the promises and the mutual agreements of the parties contained herein, the City and the Company, ExxonMobil Oil Corporation, agree with each other as follows: Section 1- Payments by the Company (a) For the years 2012 -2016, the Company shall pay to the City the amounts delineated in this Section so long as this Industrial District Agreement is in full force and effect and all of the property described in Exhibit "A" is not annexed by the City. (b) The Company shall make an "In Lieu of Tax" payment to the City of Port Arthur in an amount equal to eighty percent (80 %) of the amount of taxes that the Company would have paid to the City with respect to the land, improvements, units, equipment, inventory and all other property located on the land, described in Exhibit "A ", as if they had been located within the corporate limits of the City of Port Arthur. The "In Lieu of Tax" payment shall be paid by October 15, 2012 (year 1), October 15, 2013 (year 2), October 16, 2014 (year 3), October 15, 2015 (year 4) and October 15, 2016 (year 3). (c) The City shall not refund or credit any monies previously paid by the Company prior to the date of the execution of this Agreement, either directly or indirectly, to s.ida_ExxonMobil corp 2012 3 the City. Except as delineated in Section 14, once monies are paid to the City of Port Arthur on October 15, 2012 (year 1), October 15, 2013 (year 2), October 16, 2014 (year 3), October 15, 2015 (year 4) and October 15, 2016 (year 3), the City shall not refund or credit any of said monies. (d) The Company has complied with the terms of the current Industrial District Agreement approved by Resolution No. 06 -349 and has made all payments that were due under that agreement. Section 2.If requested orally or in writing by the Company, the City of Port Arthur's Fire Department shall provide backup fire suppression support, and the City of Port Arthur's Police Department may in the interest of public safety assist in providing an evacuation route in the case of a fire, chemical release, or other emergency at the tank farm owned by ExxonMobil Oil Corporation located in the City's extraterritorial jurisdiction. Nevertheless, ExxonMobil Oil Corporation shall be primarily liable for taking such precautions as is expected in the industry, and as is required by federal, state, and local law, including the standard codes as delineated and referenced in the Standard Fire Prevention Code as published each year by the Southern Building Code Congress International, Inc. to (1) prevent fires, explosions, and chemical releases, (2) prevent the imprudent discharge of storm water that contribute to s.ida ExxonMobil corp 2012 4 I I flooding on adjacent property, and (3) be prepared, together with local authorities, to evacuate the facility and surrounding area, as may be warranted by potential emergencies. ExxonMobil Oil Corporation shall employ sufficient fire suppression personnel and equipment to provide an initial and primary fire suppression response, as well as to control and abate chemical releases. ExxonMobil Oil Corporation shall provide the City's fire chief and police chief with emergency response plans. If there is a fire, and the City is requested to provide initial and primary fire suppression services, or if a clean -up is required under Section 2201.3.2.1 of the Standard Fire Prevention Code, ExxonMobil Oil Corporation will pay the City the costs and expenses incurred by the City and any of its departments to the same extent that similarly situated parties would. Section 3.ExxonMobil Oil Corporation shall immediately notify the City of Port Arthur's Fire Chief, Police Chief, and the City's Emergency Management Coordinator of all incidents involving fires, serious injuries, deaths, and chemical releases, flooding, or any incident that may create a health and safety hazard to the community or that exceed OSHA, TNRCC or EPA permissible exposure limits. s.ida ExxonMobil corp 2012 5 Section 4.Annexation for Health, Safety and Welfare Reasons. It is specifically stipulated that nothing in this Agreement will in any manner limit or restrict the authority of the City to annex all or part of said lands and facilities during the period of the Agreement if the City should determine that such annexation is reasonably necessary to promote and protect the general health, safety, and welfare of the persons residing within or adjacent to the City; provided however, that the City agrees that such annexation for the land described in Exhibit "A" prior to October 1, 2016 will not be made for revenue purposes only. Section 5. Annexation due to Legislative Action. Notwithstanding the provisions of Section 4, the parties agree and consent that the City may annex if a bill is adopted by the State legislature which limits or restricts the authority of the City to annex all or part of said land and improvements. In the event of annexation, the Company will not be required to make further payments under this Agreement for any calendar year commencing after annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payments for the year during which such annexation becomes effective if the annexation becomes effective after January 1st of said year. The Company shall not be required to pay ad s.ida ExxonMobil corp 2012 6 it valorem taxes to the City for the same period of time they have already paid an "in lieu of tax" payment, with respect to the property described in Exhibit "A" to this Agreement. If for any reason, the City cannot annex the property of the Company and if the parties cannot reach an agreement on a new payment schedule or on a new "in lieu of tax" agreement, the Company agrees that it will continue to pay to the City the "in lieu of tax" payments delineated in Section 1 until December 31, 2016, and it will thereafter continue to annually pay the City an "in lieu of tax" payment of eighty percent (80 %) of its taxable value times the City's tax rate for so long as it or its assignees and successors or affiliates own the property, as described in Exhibit "A ". Payments will be due on October 15th of each year. Pursuant to Sections 42.044 and 212.172 Local Government Code, the Company agrees and consents that the City has the option, in the City's sole discretion, to extend this contract and that the Company will continue to annually pay the City "in lieu of tax" payments at the eighty percent (80 %) rate, as denoted above, for successive periods not to exceed 15 years each, for a total duration not to exceed 45 years, or the maximum period allowed by law, whichever is longer. "Taxable value" is the value as determined by the Jefferson County Appraisal District in appraisal rolls after the completion of s.ida ExxonMobil corp 2012 7 all litigation and appeals (if any), of all property, land, industrial realty, improvements, units, equipment, inventory, and all other property, excluding the value of exempt pollution control devices, owned or leased by the Company and located within the extra - territorial jurisdiction of the City, as described in Exhibit "A ". The "taxable value" also includes the assessed value of any property that is located in a foreign trade zone or in any other type of federal, state, or local zone. Section 6.The City will not annex the property of ExxonMobil Oil Corporation, as delineated in Exhibit "A ", under Chapter 43 of the Local Government Code, or file litigation in District Court to abate or prevent a nuisance or seek a civil penalty under Sections 54.016, 54.017, and 217.042 of the Local Government Code for "health, safety, and welfare concerns" until written notice of the concerns has been delivered to ExxonMobil Oil Corporation, and ExxonMobil Oil Corporation has had an opportunity to respond and to address the City Council in open session. Section 7.If there is a dispute as to whether there is a health, safety, and welfare concern, the matter can, at the request of either party, be submitted to arbitration before an s.ida_ExxonMobil corp 2012 8 arbitrator selected from a panel supplied by the American Arbitration Association. The arbitration shall take place in the City Hall of the City of Port Arthur, or at such other locations as the parties agree to. The request for arbitration must be demanded in writing within ninety (90) days of the initial written complaint from either party to this Agreement, or the arbitration is waived. The costs of the arbitrator shall be shared equally between the two parties. The arbitration process shall be completed within ninety (90) days from the date the arbitrator is selected, and if it is not so completed, either party may proceed with annexation or litigation, as they so desire. Section 8. The parties agree that the City has the sole discretion, after October 1, of each year of the agreement through 2013 to annex the property in Exhibit "A" or to enter into negotiations on the payment by the Company of additional "in lieu of tax" payments. Section 9. The present owners and lessees of the land, improvements, units, equipment, inventory, and all other property located on the land in Exhibit "A" are described in Exhibit "B". The City reserves the right to annex that tract or parcel with the minimum required adjacent area, as per Chapter 43 Local Government Code, if the owners or the lessees do not s.ida ExxonMobil corp 2012 9 pay an "in lieu of tax" payment for its interest in the land, improvements, units, equipment, inventory, and all other property located on the property, as described in Exhibit "A ". Nothing contained herein shall be construed to prohibit or prevent the Company from paying the other owners' or lessees' "in lieu of tax" payment to prevent annexation by the City. If the City annexes a tract or tracts, the total "in lieu of tax" payment will be reduced by the same percentage as the assessed value of the tracts under the contract are reduced. Section 10. If the Company desires to assign this Agreement to any person, the Company shall provide written notice of such assignment and shall receive the written consent of the City Council, by a duly adopted Resolution, which will not be unreasonably withheld. The Company shall provide the description of the new Company and such other information as is reasonably requested to indicate that the new Company will safely operate the facility, act as a good corporate citizen, and will fully abide by the terms of this agreement. If the assignment is approved by the City Council, the Company shall be relieved of its obligations under this Agreement to the extent that an assignee expressly assumes the Company's obligations. 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. s.ida ExxonMobil corp 2012 10 Section 11. It is agreed by the parties to this Agreement that the Company and the City have the right to seek equitable relief, including specific performance of this Agreement. Section 12. The Company shall allow a reasonable number of authorized employees and /or representatives of the City who have been designated and approved by the City Manager, City Council, or Mayor to have access to the Company land and /or plants during the term of this Agreement to inspect the plants and any improvements thereto to determine compliance with the terms and conditions of the Agreement. All inspections will be made at mutually agreeable times and will only be conducted in such manner as to not unreasonably interfere with safety standards and security standards and rules. All inspections will be made with one or more representatives of the Company and in accordance with industry safety standards. Section 13. The Company certifies that they have not, and will not, knowingly employ an "undocumented worker" which means an individual who, at the time of employment, is not lawfully admitted for permanent residence to the United States ed in that manner in the law to be employed or authorized under a p y United States. The Company acknowledges that it has reviewed Chapter 2264, Texas Government Code, and hereby affirmatively s.ida ExxonMobil corp 2012 11 s.ida ExxonMobil corp 2012 12 agrees to repay the amount of any incentive with interest at the rate of ten percent (10%) per annum, not later than the 120 day after the date the City notifies the Company of a violation. The Company 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 Company will also promptly report to the City any "undocumented worker" that is improperly retained by its contractors or subcontractors on its facility. Section 14. Information on property values. The Company shall file, in writing with the Director of Finance of the City, an itemized rendition by affidavit, in the same form and manner as required by State Law, for rendition of property for ad valorem tax purposes, of all its properties (land, improvements, units, equipment, inventory, and all other property) real, personal and mixed. The Company shall provide to the City a copy of all pleadings and discovery filed in any litigation or protest that the Company has with Jefferson County Appraisal District. Pending final determination of any tax protest filed by the Company with the Jefferson County Appraisal Review Board, or appeal thereof, the Company shall pay to City, s.ida ExxonMobil corp 2012 13 on October 15, 2012 (year 1), October 15, 2013 (year 2), October 15, 2014 (year 3), October 15, 2015 (year 4) and October 15, 2016 (year 5), the amount calculated based upon the value of the property reflected on the most recently adopted appraisal roll prepared by or for Jefferson County Appraisal District. If the final determination of a protest or an appeal reduces the value of the property after Company has tendered payment to the City hereunder, the Company's liability hereunder shall be recalculated based on the final determination of value. After a final determination of a protest or appeal, the City agrees to refund to Company, the difference between the amount actually paid hereunder and the amount for which the Company is determined to be liable, without interest. Under no circumstances, shall there be a refund or a credit of more than ten (10%) of any "In Lieu of Tax" payment made. Said refund will be provided to the Company at the expiration of this agreement. Section 15. Electrical Usage. The Company will provide the City with information as to the electrical consumption from Entergy or from any other electric utilities, transmission and distribution utility, municipally owned utility, electric cooperative, or from any other source, as well as all metering locations that service the area in Exhibit "A ". On August 15, s.ida ExxonMobil corp 2012 14 2012, the Company shall provide the City Manager or his designee information, i.e. kilowatt usage as to the electrical consumption from January 1, 2012 to June 30, 2012 (year one), January 1, 2013 to June 30, 2013 (year two), January 1, 2014 to June 30, 2014 (year three), January 1, 2015 to June 30, 2015 (year four), January 1, 2016 to June 1, 2016 (year five) with another report being made at the end of each year as to the total electrical consumption. Section 16. Notice of Default. Notwithstanding anything herein to the contrary contained, in the event of any breach by the Company of any of the terms or conditions of this Agreement, the City shall give the Company not less than five (5) business days' written notice, specifying the nature of the alleged default, and manner in which the alleged default may be satisfactorily cured. Thereafter, the Company will be afforded a reasonable time within which to cure the alleged default. Nevertheless, time is of the essence on the payment schedule for the "in lieu of tax" payment on October 15th. If the Company does not pay the "in lieu of tax" payment on October 15th, the City can immediately commence annexation proceedings and sue for all damages. In case of litigation for breach of the Agreement and to encourage timely payments, the City can seek 1000 of all monies that the City would have received from the Company if it s.ida ExxonMobil corp 2012 15 been within the corporate limits, which include 100: of all taxes, building permits, sales or use taxes, and all franchise fees on electrical usage, interest and penalty thereon, attorney's fees, and court costs. Also, if the Company intentionally discriminates against Port Arthur companies, the City can seek the direct and indirect damages that the City would have accrued, if the discrimination did not occur. Section 17. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the Projects described herein 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 18. 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. s.ida_ExxonMobil corp 2012 16 Payment of the "in lieu of tax" payments is an essential part of this Agreement. Section 19. Remedies Cumulative. Except as other- wise expressly provided herein, all rights, privileges, and remedies afforded the parties by this Agreement shall be deemed cumulative and not exclusive, and the exercise of any or more of such remedies shall not be deemed to be a waiver of any other right, remedy, or privilege provided for herein or available at law or in equity. Section 20. 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 21. 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, which may be sufficiently evidenced by one counterpart. Section 22. Authority By acceptance of this Agreement and /or benefits conferred hereunder, the Company represents and warrants that its undersigned agents have complete and unrestricted authority to enter into this Agreement and to obligate and bind the Company to all of the terms, covenants and conditions contained herein. s.ida ExxonMobil corp 2012 17 Section 23. Notice Any notice provided for in this contract shall be given in writing to the parties hereto by certified mail, return receipt requested, addressed as follows: TO CITY: TO THE COMPANY: City Manager EXXONMOBIL OIL CORPORATION CITY OF PORT ARTHUR 444 4 St. Port Arthur, TX 77640 ( ) ( ) Fax WITH A COPY TO: City Attorney CITY OF PORT ARTHUR 444 4 St. Port Arthur, TX 77640 (409) 983 -8126 (409) 983 -8124 Section 24. This agreement is effective the 1st day of January 2012, and shall expire on the 31 day of December, 2016, unless extended by the City of Port Arthur, as delineated in Section 3 s.ida Exxon1obil corp 2012 18 SIGNED ON THIS THE day of , 2012. EXXONMOBIL OIL CORPORATION BY: ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF JEFFERSON § BEFORE ME, the undersigned Notary Public, on this day personally appeared , known to me to be the person whose name is described to the foregoing instrument, and acknowledged to me that he /she executed the same as the act and deed of Exxonmobil Oil Corporation, for the purposes and consideration therein expressed, and the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE day of , A.D., 2012. NOTARY PUBLIC, STATE OF TEXAS s.ida ExxonMobil corp 2012 19 SIGNED ON THIS THE _ day of , 2012. THE CITY OF PORT ARTHUR BY: ACKNOWLEDGMENT STATE OF TEXAS § § COUNTY OF JEFFERSON § BEFORE ME, the undersigned Notary Public, on this day personally appeared Stephen Fitzgibbons, City Manager, known to me to be the person whose name is described 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 consideration therein expressed, and the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, THIS THE day of , A.D., 2012. NOTARY PUBLIC, STATE OF TEXAS AFTER RECORDING RETURN TO: CITY OF PORT ARTHUR LEGAL DEPARTMENT P. O. BOX 1089 PORT ARTHUR, TEXAS 77641 -1089 s.ida_ExxonMobil corp 2012 20