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Ordinance No. 1,87662,36 ORDINANCE NO.1876 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN TEXAS,AUTHORIZING THE MAYOR TO EXECUTE ANDTHECITYCLERK TO ATTEST TO AN INDUSTRIAL DISTRICT CONTRACT BETWEEN CHEMICAL EXCHANGE BAYTOWN,INC.AND THE CITY OF BAYTOWN TEXAS,AND PROVIDING FOR THE EFFECTIVE DATE HEREOF. WHEREAS,the Municipal Annexation Act,Article 970a, Revised Civil Statutes of Texas,provides for the creation of industrial districts within the extraterritorial jurisdiction of cities;and WHEREAS,pursuant to such Municipal Annexation Act and in the interest of further cooperation with industry andthe economic enhancement of Baytown,the City Council of the City of Baytown enacted Ordinance No.886,dated the 14th day of September,1967,designating a part of its extraterritorial jurisdiction as an industrial district known as Baytown Industrial District No.1;and WHEREAS,a portion of Chemical Exchange's properties is located within Baytown Industrial District No.1;and WHEREAS,Chemical Exchange's contract with the City of Baytown covering said properties did expire this year;and WHEREAS,the City Council of the City of Baytown and Chemical Exchange Baytown,Inc.desire to enter into a new industrial district contract;NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OFTHE CITY OF BAYTOWN,TEXAS: Section 1:That the City Council of the City of Baytown authorizes the Mayor to execute and the City Clerk to attest to an industrial district contract between Chemical Exchange Baytown,Inc.and the City of Baytown,Texas.A copy of said contract is attached hereto,marked Exhibit "A,"and made a part hereof forall intents and purposes. 613.7 Section 2:Effective Date:This ordinance shall take effect immediately from and after its passage bythe City Council of the City of Baytown. INTRODUCED,READ and PASSED by the affirmative vote of the City Council of the City of Baytown,this 25th day of September,1975. TOM GENTRY,Mayor ATTEST: EDNA OLIVER,City Clerk APPROVED: ON,CityAttorne>s -2- 6138 EXHIBIT "A11 6139 INDUSTRIAL DISTRICT AGREEMENT BETWEEN CHEMICAL EXCHANGE BAYTOWN,INC. AND THE CITY OFBAYTOWN,TEXAS This Agreement is made and entered into between theCity of Baytown,Texas,a municipal corporation in Harris County,Texas,hereinafter also referred to as "Baytown and "City,"and Chemical Exchange Baytown,Inc.,a Texas corporation with a permit to engage in business in the State of Texas,hereinafter referred to as "Chemical Exchange": WHEREAS,Baytown has a history of cooperating with industries located within and near its city limits;and WHEREAS,the City Council of the City of Baytown is of the considered opinion that such cooperation results in economic growth and stability for Baytown and its adjacent areas;and WHEREAS,the Texas Legislature in 1963 adopted the "Municipal Annexation Act,"Article 970a,Revised Civil Statutes of Texas,which provides forthe creation of Industrial Districts within the extraterritorial jurisdiction of cities; and WHEREAS,pursuant to such Municipal Annexation Act and in the interest of further cooperation with industry and the economic enhancement of Baytown,the City of Baytown en acted Ordinance No.886,dated the14thday of September, 1967,designating a part of its extraterritorial jurisdiction asan Industrial District known as Baytown Industrial District No.1;and 6lko WHEREAS,theCity Council desires that that portion of Chemical Exchange's Baytown Plant and facilities in Appendix A be included in the Baytown Industrial District No.1 and furtherdesires to enter into this contractual agreement with ChemicalExchange for this purpose;and WHEREAS,Chemical Exchange's Plant includes both real and personal property in its refining and chemical manufacturing and research facilities,including any office facilities used in direct support of these operations and either situated contiguous thereto or separated by public roads;NOW THEREFORE, In consideration of the promises and of the mutual covenants and agreements herein contained,it is agreedby and betweenChemicalExchange and the City of Baytown as follows: 1.The City of Baytown hereby agrees that all of the land and improvements thereon owned,used,occupied, leased,rented or possessed by Chemical Exchange within the area designated as Baytown Industrial District No.1 by Ordinance No.886 and amendments thereto which Industrial District is more particularly described in Appendix A to this Agreement and made a part hereof shall continue its extraterritorial status as an Industrial District and shall not be annexed by the City of Baytown nor shall the City attempt toannex,or in any way cause or permit to be annexed any of such property during the term of this agreement.The City further agrees,promises and guarantees that during the term of this agreement the City of Baytown shall not apply or purport to apply any ordinance,rule or regulation to such property except as relating to noise,vibration,and pollution performance standards as hereinafter provided. -2- 6iki Specifically,but without limitation,the City agrees, promises,and guarantees that it will not extend to said property any ordinances,rules or regulations (a)governing plats and the subdivision of land;(b)prescribing any zoning,building,electrical,plumbing or inspection codeor codes;and (c)attempting to exercise in any manner whatsoever control over the conduct of Chemical Exchange's business thereon.The City further agrees that during the term of this Agreement,it will not levy or purport to levy ad valorem taxes against any real or personal property owned, used,occupied,leased,rented,or possessed by Chemical Exchangewithin the property boundaries described in said Appendix A. 2.It is further agreed that during the term of this Agreement the City of Baytown shall not be required to furnish municipal services to Chemical Exchange's Baytown Plant,which are ordinarily and customarily supplied by the City to property owners within its boundaries,except as provided by mutual agreement.Specifically,but without limitation,it is agreed that the City of Baytown shall not be required to furnish:(1)sewer or water service,(2) police protection,(3)fire protection,(4)road or street repairs,and (5)garbage pickup service. 3.Chemical Exchange and the City of Baytown recognize that in the past Chemical Exchange has paid a share of the needed revenue for operating theCityand providing services for its residents.It is further recognized that during the next succeeding seven years the City of Baytown will experience population growth as a result of industrial expansion which will necessitate increased revenue to provide expanded service and facilities.In view of this -3- 6lk2 ^increased need for revenue,Chemical Exchange agrees to pay theCity of Baytown an Industrial District payment on or before January 31 of eachyear during the term of this agreement an amount to be calculated on the basis of the following formula,except as hereinafter provided in Paragraph 4: Chemidal Exchange's Industrial District value,as defined below,x 0.06 xthe property tax rate per $100 of assessed valuation adopted by theCity Council for theCity of Baytown for financing the #*.fiscal year in which such January 31 due date falls. In applying the above formula,the factor referred to as "Chemical Exchange's Industrial District Value"shall be defined as: (A)The fair market value of Chemical Exchange's Plant within the City's jurisdiction asof January 1 of the calendar year next preceding the calendar year in which such January 31 due date falls, less; (B)The fair market value of that portion of Chemical Exchange's Baytown Plant annexed to the City of Baytown,which is twenty (20%)per centof thefair market value within the City's jurisdictional area as of January 1 of the calendar year next preceding the calendar year in which such January 31 due date falls,except as hereinafter provided in Paragraph 4. Annual payments under this Agreement shall be calculated by the City of Baytown in the above stated manner. Determination of City and Industrial District fair market ^values,in the above stated manner,shall be made by the """""City of Baytown and approved by the Board of Equalization. -4- Such final fair market value as approved by the Board of Equalization shall be subject to exception by Chemical Exchange and should Chemical Exchange take exception to the fair market value of such property as determined by the Board and should the Board and Chemical Exchange be unable, through negotiations,to reach a mutually acceptable fair marketvalue on or before September 1 of the calendar year next preceding the calendar year in which such January 31 due date falls,then either party may request determination of such disagreement by a mutually acceptable arbitrator. The cost of such arbitrator shall be shared equally by the City of Baytown and Chemical Exchange,and such arbitrator's determination shall be final and binding unless either party within thirty (30)days after such arbitrator's determination is received by the parties,petitions for a Declaratory Judgment to the Civil District Court of Harris County, Texas,as provided for by Section 5 hereof. Shouldthe parties be unable to agree upon a mutually acceptable arbitrator,each party shall nominate one arbitrator and the arbitrators so nominated bythe parties shall select a third arbitrator whowill act with them as a three-member arbitration panel to decide the disagreement between the parties bythe concurrence of a majority of such panel.Such arbitrator or arbitration panel shall determine whether thefair market value of such property is as contended bythe Board of Equalization,by Chemical Exchange or some intermediate value.The cost of such arbitration panel shall be shared equally bytheCity of Baytown and Chemical Exchange,and such panel's determination shall befinaland binding unlesseither party within thirty (30)days after such determination is received by the parties, petitions for a Declaratory Judgment to the Civil District Court of Harris County,Texas,as provided by Section 5 hereof. —5— 6ihk In determining the fair market value of property and improvements as used herein,the Board of Equalization and any arbitrator or arbitration panel shall base its determination on the replacement cost of comparable present day facilities considering and givingeffect to sound engineering valuation practices relative to service life,life expectancy, process and functional obsolescence. 4.Chemical Exchange and the City of Baytown recognize the necessity of uniform application of Industrial District provisions.Chemical Exchange and the City further recognize that such uniform application will require some annexations and some disannexations of industrial areas over the period 1975 to 1977.Chemical Exchange and the City agree that the total Industrial District payment due January 31,1976 shall be calculated as follows: The total payment would consist of an ad valorem tax applicable to that portion of Chemical Exchange's Baytown Plant annexed to theCity as of January 1, 1975 and an Industrial District payment to be de termined by subtracting the aforementioned ad valorem tax from a totalamount calculated using anad valorem tax payment based on twenty (20%)per cent of the marketvalue of Chemical Exchange's Baytown Plant within the City's jurisdiction and an Industrial District payment based on eight (80%)per cent of the market value of the plant within the City's jurisdiction as defined in Section 3. -6- 5.If any disagreement arises between the parties concerning the interpretation of this Agreement or the decisions of the arbitrator or arbitration panel provided for hereunder,it is agreed that either of said partiesmay petition any Civil District Court of Harris County,Texas, for a Declaratory Judgment determining said controversy and the causeshall be tried as other civil causes in which plaintiff must establish by a preponderance of the evidence the correct interpretation of valuation.Pending final determination of said controversy,Chemical Exchange shall pay to the City of Baytown on the due date the same amount which it paid to the City for the last preceding period as to which there was no controversy concerning the amount owed by Chemical Exchange tothe City.Chemical Exchange agrees to tender the amount of potential liability to the registry of the Civil District Court,Harris County,Texas,pending final determination of the controversy beyond any further appeal. 6.All payment to the City of Baytown provided for herein shall be made to the City at the CityHall in Baytown,Texas.If'any payment is not made on or before the due date,the same penalties,interest,attorneys'fees and costs of collection shall be recoverable by the City as would be collectible in thecase of delinquent ad valorem taxes;provided,however,that this sentence shall not apply to any payment which may be found to have been deficient as the result of proceedings provided for in Section 5 hereof. The City shall have a lien upon any delinquency in Industrial District payment. -7- 6ik6 7.If any other municipality attempts to annex any land or property owned,used,occupied,leased,rented or possessed by ChemicalExchange within the area designated as Baytown Industrial District No.1,more particularly des cribed in Appendix A to this agreement,or if the creation of any new municipality should be attempted so as to include within its limits any of such land or property,the City of Baytown shall,with the cooperation of Chemical Exchange, seek injunctive relief against any such annexation or incor poration,and shall take such other legal steps as may be necessary or advisable under the circumstances.The cost of such legal steps,including fees of attorneys (other than the City Attorney)retrained by mutual agreement of the parties, shall be paid by Chemical Exchange.Should theCity refuse or fail to comply with its obligation under this paragraph, Chemical Exchange shall have the right to seek such legal or equitable relief as it deems necessary or advisable in its own name or in the name of the City and,if necessary,Chemical Exchange may jointhe City as a party to any such legal action. If the City and Chemical Exchange are unsuccessful in preventing any such'attempted annexation or incorporation, Chemical Exchange shall have the right to terminate this Agreement asto any property so annexed or incorporated retro active tothe effective date of such annexation or incorporation, or Chemical Exchange may continue this Agreement in full force and effect;provided,however,that Chemical Exchange's right of terminating this Agreement must be exercisedwithin thirty (30)days after judgment upholding such annexation or incor poration becomes final beyond further appeal.If any payment -8- Glkl is made by Chemical Exchange to the City of Baytown after the effective date of such annexation or incorporation and if Chemical Exchange elects to terminate this Agreement as above provided,then as to such property so annexed or incorporated such payment shall be refunded by theCity to Chemical Exchange. 8.The City of Baytown and Chemical Exchange mutually recognize that the health and welfare of Baytown residents require adherence to high standards of quality in the air emissions,water effluents and noise,vibration and toxic levels of those in dustries located in the Baytown Industrial District No.1.To this end,Chemical Exchange and theCity agree that the same standards and criteria relative to noise,vibration and toxic levels which are adopted by the City and applicable to portions of the City adjacent to Chemical Exchange's Baytown Plant shall also be applicable to the plant within the Industrial District; provided however,thatsaid standards and criteria,if adopted, shall not operate to prohibit or restrain any activities pre sently carried on by Chemical Exchange within the Industrial District and the City at present levels of operation and under presentlyexisting operating conditions.Chemical Exchange further agrees to abide by the rules and regulations andthe permits issued to it by the Environmental Protection Agency, the Texas Water Quality Board,the Texas Air Control Board, and any other governmental agency having legal authority in these matters.In this connection,it is recognized between the parties that these agencies are charged with the re sponsibility for enforcing air and water quality standards, and it is agreed that so long as the Environmental Protection Agency,the Texas Water Quality Board,the Texas Air Control Board,and other related agencies are charged with such re sponsibility,nothing contained herein shallbe construed to -9- 6iU8 -Pose upon the Clty of Baytown any responslbmty>^ or right.by termlnation of this Agreement or otherwise to ' enforce any standards reXative to air and waterquallty'as are established by law,rule>regulation Qr ^^^^^ also agreed that no vioiation of any standards or criteria adopted by the City shall be a reason for termination of this Agreement. 9.This Agreement shall be for a term of seven (7)years from the date this instrument ±g ^^and ^ such additional period or periods of time as provided by the Texas Municipal Annexation Act and mutually agreed upon by the parties hereto.This Agreement shall further terminate and replace that certain Industrial District Agreement entered into between Bore-Warner Corporation,Marbon Chemical Division andthe City of Baytown,dated February 26,1968. 10.The benefits accruing to Chemical Exchange under this Agreement shall also extend to Chemical Exchange's "affiliates"and toany properties owned or acquired bysaid affiliates within the area described in Appendix A to this Agreement,and where reference is made herein to land, property and improvements ownedby Chemical Exchange,that shall also include land,property and improvements owned by its affiliates.The word "affiliates-as used herein shall mean all companies with respect to which Chemical Exchange directly or indirectly,through one or moreintermediaries at the time in question,owns or has the power to exercise the control over fifty (50%)per centor more of the stock having the right ot vote for the election of directors. -10- 611*9 11.It is agreed by the parties to this Agreement that only full,complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that,therefore,in addition to any action at law for damages which either party may have,Chemical Exchange may enjoin the enactment or enforcement of any ordinance or charter amendment in violation of,or in conflict with,the terms of this Agreement and may obtain such other equitable relief,including specific performance of the Agreement,as is necessary to enforce its rights.It is further agreed that should this Agreement be breached by Chemical Exchange, the City shall be entitled,in addition toany action at law for damages,to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. However,nothing contained herein shall be construed to give the City any right to terminate this Agreement on the basis of Chemical Exchange's violation of any standard or criteria relative to air emissions,water effluents,noise,vibration, or toxic levels established by any law,ordinance,rule,re gulation or permit. 12.In the event the terms and conditions of this contract are rendered ineffective by the Constitution and/or Legislative changes,both parties mutually agree that said contract shall be renegotiated to accomplish the intent of this Agreement. EXECUTED IN DUPLICATE ORIGINALS this day of ,A.D.,1975. CHEMICAL EXCHANGE BAYTOTO,INC. By. President ATTEST: Secretary CITY OF BAYTOWN y TOM GENTRY,Mayor\J ATTEST: EDNA OLIVER,City Clerk -11- 6150 APPENDIX "A" BEGINNING at a point on the existing city limits line of the City of Baytown,Harris County,Texas,said point being more fully described as being on the South line of the Harvey Whiting Survey andSouth 89 degrees 30 minutes West a distance of 153.60 feet fromthe intersection of the same South line of the Harvey Whiting Survey and the West line of the Houston North Shore Railroad Right-of-way; Thence,North 11 degrees 56 minutes East a distance of 102.40 feetto the corner of a 15.91 acre tract occupied by the Marbon Company,said corner being the Southeast corner of the15.91acre tract; Thence,continuing North 11 degrees 56 minutes East a distance of 119.98 feet to a point for corner; Thence,South 89 degrees 30 minutes West a distance of 1,432.77 feet to a point for corner on theWestline of the 15.91 acre tract; Thence,South 0 degrees 30 minutes East a distance of 117.17 feet to a point for corner on the South line of the 15.91 acre tract; Thence,North 89 degrees 30 minutes East a distance of 1,396.70 feet along the South line of the 15.91 acretract to a point for corner; Thence,South 11 degrees 56 minutes West a distance of 102.40 feet to a point for corner on the South line of the Harvey Whiting Survey; Thence,North 89 degrees 30 minutes East a distance of 10.24 feet along the South line of the Harvey Whiting Survey to the POINT OF BEGINNING,being a tract containing 3.819 acres of the Marbon Company 15.91 acre tract and 0.0275 acres of the Humble Oil &Refining Company and Humble PipeLine Company property.