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Ordinance No. 2,473fqlf 85 -2 ORDINANCE NO. 2473 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN AUTHORIZING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT CONTRACT BETWEEN MOBAY CHEMICAL CORPORATION AND THE CITY OF BAYTOWN 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 and the economic enhancement of Baytown, the City Council of the City of Baytown enacted Ordinance No. 899, dated the 26th day of October, 1967, designating a part of its extraterritorial jurisdiction as an industrial district known as Baytown Industrial District No. 3; and WHEREAS, a portion of Mobay Chemical Corporation's properties is located within Baytown Industrial District No. 3; and WHEREAS, Mobay Chemical Corporation'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 Mobay Chemical Corporation desire to enter into a new industrial district contract; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE 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 Mobay Chemical Corporation and the City of Baytown. A copy of said contract is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. W 85 -2a Section 2: This ordinance shall take effect immediately from and after its passage by the 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 May , 1978• ATTEST: B-ILEEN P. HALL, City Clerk APPROVED: SCOTT BOUNDS, City Attorney Zoe v IMM6METT O. HUTTO, Mayor -2- tl�) 8 ; 5 -2b 'In E X H I B I T "A" 8I5 -2c INDUSTRIAL DISTRICT AGREEMENT BETWEEN MOBAY CHEMICAL CORPORATION AND THE CITY Or BAYTOWN, TEXAS This Agreement is made and entered into between the City of Baytown, Texas, a municipal corporation in Harris and Chambers Counties, Texas, hereinafter also referred to as "Baytown" and "City ", and Mobay Chemical Corporation, a Delaware corporation with a permit to engage in business in the State of Texas, hereinafter referred to as "Mobay ": W I T N E S S E T H: WHEREAS, industries located WHEREAS, is of the consider in economic growth cent areas; and WHEREAS, Baytown has a history of cooperating with within and near its city limits; and the City Council of the City of Baytown ad opinion that such cooperation results and stability for Baytown and its adja- the Texas Legislature in 1963 adopted the "Municipal Annexation Act ", Article 970a, Revised Civil Statutes of Texas, which provides for the creation of Indus- trial 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 enacted Ordinance No. 899, dated the 26th day of October, 1967, designating a part of its extraterritorial jurisdic- tion as an Industrial District known as Baytown Industrial District No. 3; and WHEREAS, the City Council desires that those properties of Mobay described in Appendix A hereof (embracing in general Mobay's chemical plant properties) be included in the Baytown Industrial District No. 3 and further desires to 85 -2d enter into this contractual agreement with Mobay for this purpose; and WHEREAS, Mobay's properties (as defined herein- after in Paragraph 3) include both real and personal property in its plant facilities, including any office facilities used in direct support of these operations and either situated contiguous thereto or separated by public roads; NOW THERE- FORE, In consideration of the premises and of the mutual covenants and agreements herein contained, it is agreed by and between Mobay 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 Mobay within the area designated as Baytown Industrial District No. 3 by Ordinance No. 899, and enlarged by further ordinance, with the exception of that area described in Appendix B that shall be annexed upon adoption of this agreement, shall continue its extrater- ritorial status and shall not be annexed by the City of Baytown nor shall the City attempt to annex, or in any way cause or permit to be annexed any of such property during the term of this Agreement. The Mobay land within Baytown Industrial District No. 3 as of the date of this Agreement is described in Appendix A, attached hereto and made a part hereof. All references to "Baytown Industrial District No. 3" throughout this Agreement shall be deemed to encompass the area now within said District together with any expan- sions of said area 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. Specifically, but without limitation, the City agrees, promises, and guarantees that it will not -2- 0m extend to said property any ordinance, rules or regulations (a) governing plats and the subdivision of land; (b) pre- scribing any zoning, building, electrical, plumbing or inspection code or codes; and (c) attempting to exercise, in any manner whatsoever, control over the conduct thereon of Mobay's business (or that of its "affiliates" as this term is hereinafter defined). 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 Mobay or any of its affiliates within Baytown Industrial District No. 3. 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 Mobay's properties 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. Mobay and the City of Baytown recognize that in the past Mobay has paid a share of the needed revenue for operating the City and 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 neces- sitate increased revenue to provide expanded service and facilities. In view of this increased need for revenue, Mobay agrees to pay the City of Baytown an Industrial District Payment on or before January 31 of each year during the term of this Agreement in an amount to be calculated on the basis of the following formula (except for calendar years 1978 -3- 25 -2f and 1979 as hereinafter provided in Paragraph 4): Mobay's Industrial District Value, as defined below, x 0.06 x the property tax rate per $100 of assessed valuation adopted by the City Council for the City 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 " Mobay's Industrial District Value" shall be defined as: (A) The fair market value of Mobay's properties within the Baytown Industrial District No. 3 (referred to herein as " Mobay's properties ") as of 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 Mobay's properties annexed to the City of Baytown, which is twenty (2010) per cent of the fair market value of Mobay's properties as of January 1 of the calendar year next preceding the calendar year in which such January 31 due date falls. Annual payments under this Agreement shall be calculated by the City of Baytown in the above stated manner. Deter- mination 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. Such fair market values as approved by the Board of Equalization shall be subject to exception by Mobay and should Mobay be unable, through negotiations, to reach mutually acceptable fair market values 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 Mobay, and such arbitrator's determination shall be final and binding unless either party within thirty -4- 5 -2g (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 Paragraph 5 hereof. Should the parties be unable to agree upon a mutually acceptable arbitrator, each party shall nominate one arbi- trator and the arbitrators so nominated by the parties shall select a third arbitrator who will act with them as a three - member arbitration panel to decide the disagreement between the parties by the concurrence of a majority of such panel. Such arbitrator or arbitration panel shall determine whether the fair market value of such property is as contended by the Board of Equalization, by Mobay, or some intermediate value. The cost of such arbitration panel shall be shared equally by the City of Baytown and Mobay, and such panel's determination shall be final and binding unless either 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 for by Paragraph 5 hereof. In determining the fair market value of the 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 giving effect to sound engineering valuation practices relative to service life, life expectancy, process and functional obsolescence. 4. It is agreed and understood between Mobay and the City of Baytown that the first payment under this contract shall be due April 1, 1978, and said payment shall be deemed delinquent if received by the City after July 10, 1978. Said payment shall be based upon the formula hereinabove -5- 5W 8 5 -2h referred to in Paragraph 3 as if twenty (20 %) per cent of the value of Mobay's properties had been previously annexed by the City of Baytown. Said payment, however, shall be seventy -five (75%) per cent of the amount using the above referred to formula. The valuation of Mobay's properties shall be based upon a $2,900 per acre real property value and the current Goose Creek Independent School District Tax Roll Fair Market Value of $118,799,820 for its improvements, inventory, and personal property. This value shall be used for purposes of the payment due April 1, 1978. The payment due January 31, 1979 shall be based upon the formula hereinabove referred to in Paragraph 3 as if 20% of the value of Mobay's properties had been previously annexed by the City of Baytown. The valuation of Mobay's properties for the January 31, 1979 payment shall be based upon appraisal made by the City of Baytown or its designated representative. The provisions of Paragraph 3 shall control the procedure for Mobay's excepting to the valuation placed upon Mobay's properties by the City of Baytown. 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 parties may petition any Civil District Court of Harris County, Texas, for a Declaratory Judgment determining said controversy and the cause shall be tried as other civil causes in which plaintiff must prove by a preponderance of the evidence its position. Pending final determination of said controversy, Mobay 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 so 85 -2i amount owed by Mobay to the City. Mobay agrees to tender the amount of potential liability to the registry of the Civil District Court of Harris County, Texas, pending final determination of the controversy beyond any further appeal. 6. All payments to the City of Baytown provided for herein shall be made to the City at the City Hall 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 the case of delinquent ad valorem taxes; provided, however, that this sentence shall not apply MPN to any payment which may be found to have been deficient as the result of proceedings provided for in Paragraph 5 hereof. The City shall have a lien upon any delinquency in Industrial District payment. 7. If any other municipality attempts to annex any land or property owned, used, occupied, leased, rented or possessed by Mobay within the area designated as Baytown Industrial District No. 3, 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 Mobay seek injunctive relief RAN against any such annexation or incorporation, 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) retained by mutual agreement of the parties, shall be paid by Mobay. Should the City refuse or fail to comply with its obligation under this paragraph, Mobay 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, Mobay may join the City as a party to any such legal action. -7- Ed L'^ N,5-2i If the City and Mobay are unsuccessful in preventing any such attempted annexation or incorporation, Mobay shall have the right to terminate this Agreement as to any property so annexed or incorporated retroactive to the effective date of such annexation or incorporation, or Mobay may continue this Agreement in full force and effect; provided, however, that Mobay's right of terminating this Agreement must be exercised within thirty (30) days after judgment upholding such annexation or incorporation becomes final beyond further appeal. If any payment is made by Mobay to the City of Baytown after the effective date of such annexation or incorporation and if Mobay elects to terminate this Agree- ment as above provided, then as to such property so annexed or incorporated such payment shall be refunded by the City to Mobay. 8. The City of Baytown and Mobay mutually recognize that the health and welfare of Baytown residents requires adherence to standards of quality in the air emissions and water effluents by those industries located within Baytown Industrial District No. 3. To this end, Mobay agrees to abide by the valid permits issued to it by, and the valid rules and regulations of, the Environmental Protection Agency, the Texas Water Quality Board and the Texas Air Control Board, or their successors. In this connection, it is recognized by the parties that the Environmental Protection Agency, the Texas Water Quality Board and the Texas Air Control Board are charged with the responsibility for enforcing air and water quality standards and nothing contained herein shall be construed to grant the City of Baytown or any third party any authority or right, by termination of the Agreement or otherwise, to enforce any standards relative to air and water quality as are established by law, charter provision, rule, regulation or permit. In the event noise and vibration $25 -2k caused by operation of Mobay's plant cause the City serious problems, both Mobay and the City shall, at the time the problems arise, discuss the same. 9. This Agreement shall be for a term of seven (7) years from the effective date of this instrument and for 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 Mobay and the City of Baytown, dated May 10, 1971. During the term of this Agreement, the City agrees to afford the protection of this Agreement to all subsequent purchasers of any of Mobay's properties, provided any such subsequent purchaser notified the City, within 90 days of the acquisition of such property, of its intention to accept the provisions of this Agreement. If such subsequent purchaser fails to so notify the City of Baytown within such 90 -day period, and if a moratorium will not be applicable under ordinances then in effect which will reasonably serve the interests of the City and the purchaser until the expi- ration date of this Agreement, then Mobay agrees that the City of Baytown may annex such of its property as is nec- essary to bring the boundaries of the City of Baytown adjacent to the property of the heretofore mentioned purchaser. If the property was owned by Mobay on January 1 of any calendar year during the term of this contract, then said property shall be computed for value purposes in arriving at the Industrial District payment due January 31 of the following year. am 59 3 5 -21 If Mobay leases any portion of the property, the subject of this Agreement, Mobay shall be the responsible party for the payment of the Industrial District payments to the City of Baytown. 10. The benefits accruing to Mobay under this Agreement shall also extend to Mobay's "affiliates" and to any properties owned or hereafter acquired by Mobay or by said affiliates within Baytown Industrial District No. 3, and where reference is made herein to land, property and improvements owned by Mobay, that shall also include land, property and improve- ments owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Mobay directly or indirectly, through one or more inter- mediaries at the time in question, owns or has the power to exercise the control over fifty (500) per cent or more of the stock having the right to vote for the election of directors. If Mobay or any affiliates of Mobay hereafter acquire any land within Baytown Industrial District No. 3 and give written notice of such acquisition to the City of Baytown, such land and all real, personal or mixed property located thereon shall be subject to the provisions of this Agreement as of the date of delivery of written notice unless such land has previously been included within the corporate limits of the City of Baytown or another city. 11. It is agreed by the parties to this Agreement that only full, complete 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, Mobay 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 -10- W 5 -2m relief, including specific performance of this Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Mobay, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. Nothing contained herein, however, shall be construed to give the City any right to terminate this Agreement on the basis of Mobay's violation of any standard or criteria relative to air emissions, water effluents, noise, vibration, or toxic levels established by any law, ordinance, rule, regulation 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 re- negotiated to accomplish the intent of this Agreement. EXECUTED IN DUPLICATE ORIGINALS effective the 1st day of April, A.D. 1978. MOBAY CHEMICAL CORPOR.ATI ATTEST: By z� -ham-- XB1F��13�X Executive Vice President Secr�toty ATTEST: City Clerk CITY OF BAYTOWN By Mayor -11- APPENDIX A TO INDUSTRIAL DISTRICT AGREEMENT BETWEEN MOBAY CHEMICAL COMPANY AND THE CITY OF BAYTOWN, TEXAS Description of land of Mobay to be included in Baytown Industrial District No. 3 8,25 -2n 1. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas containing 45.837 acres, being the same property conveyed to the Mobay Chemical Company by Sidney S. McClendon III, Trustee, by deed dated the 10th day of March, 1970, recorded in Volume 313 Page 345 of the Deed Records of Chambers County, Texas. 2. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas, containing 322.656 acres, being the same property conveyed to the Mobay Chemical Company by Sidney S. McClendon III, Trustee, by deed dated the 10th day of March, 1970, recorded in Volume 313 Page 340 of the Deed Records of Chambers County, Texas; save and except 11.06 of said tract conveyed to the State of Texas by Baychem Corporation, by deed dated the 14th day of November, 1972, recorded in Volume 341 Page 436 of the Deed Records of Chambers County, Texas. 3. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas, containing 183.345 acres, being the same property conveyed to the Mobay Chemical Company by Sidney S. McClendon III, Trustee, by deed dated the 10th day of March, 1970, recorded in Volume 313 Page 338 of the Deed Records of Chambers County, Texas. 4. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas, containing 20.19 acres, being the same property conveyed to the Mobay Chemical Company by Sidney S. McClendon III, Trustee, by deed dated the 10th day of March, 1970, recorded in Volume 313 Page 250 of the Deed Records of Chambers County, Texas. 5. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas, containing 16 acres, being the same property conveyed to the Mobay Chemical Company by Chambers County Development Company, by deed dated the 4th day of January, 1974, recorded in Volume 352 Page 142 of the Deed Records of Chambers County, Texas. 6. That certain tract of land in the Christian Smith League, Abstract 22, Chambers County, Texas, containing 150.443 acres, being the same property conveyed to Mobay Chemical Company by Chambers County Development Company, by deed dated the 4th day of January, 1974, recorded in Volume 352 Page 148 of the Deed Records of Chambers County, Texas. Id APPENDIX B TO INDUSTRIAL DISTRICT AGREEMENT BETWEEN MOBAY CHEMICAL COMPANY AND THE CITY OF BAYTOWN, TEXAS Description of land of Mobay within Industrial District No. 3 to be annexed by the City of Baytown 25 -20 BEGINNING at a point in the high tide water line of the West bank of Cedar Bayou, said point being in the East B. L. of the Baytown Ready -Mixed Concrete Co. 15.257 acre tract as surveyed by A. J. Busch, Jr. in Feb. 1968 at a point approx- imately 180 feet Southeast of the Northeast corner of said tract; THENCE, in a Northwesterly and up- stream direction with the meanders of the high tide water line of the West bank of Cedar Bayou approximately 800 feet, to the point of inter- section of the Southeast corner of a tract of land containing 3.35 acres of land, more or less, allotted and set aside to Mattie Mae Massey, Percy Massey and Lorraine Massey in Cause No. 94341, styled M. W. Epperson, et al, vs. Reuben Casey, et al, said 3.35 acre tract also being the same property conveyed to Lawrence B. Futvoye in deed dated May 9, 1933 in Vol. 938, Page 700, recorded in the Deed Records of Harris County, Texas; THENCE, in an Easterly direction approximately 130 feet crossing Cedar Bayou to an iron rod set for the Northwest corner of a 30.507 acre tract of land known as Tract No. 1 of two (2) tracts of land surveyed for Willis E. Williams, et al, and situated in the Christian Smith League, Abstract No. 22, Chambers County, Texas, and being the same tract of land conveyed to S. R. Williams by C. A. Williams in a deed recorded in Vol. 13, Page 492, Deed Records of Chambers County, Texas, said corner also being the Southwest corner of the H. W. Kilpatrick, III tract of land; THENCE, North 380 40' 16" East with the North line of this tract of land and the South line of said Kilpatrick tract of land a distance of 359.52 feet to a re bar found for a corner of this tract and a corner of the Kilpatrick tract of land; THENCE, North 770 33' 13" East with the North line of this tract of land and the South line of said Kilpatrick tract of land a distance of 338.19 feet to a re bar found for a corner of this tract of land and a corner of the Kilpatrick tract of land; THENCE, South 130 28' 23" East with the East line of this tract and the West line of the Kilpatrick tract of land a distance of 365.90 feet to a re bar found for a corner of this tract of land and a corner of the Kilpatrick tract of land; THENCE, North 760 35' 20" East with the North line of this tract and the South line of the Kilpatrick tract of land a distance of 1302.51 feet to an iron rod set for a corner of this tract of land in the West r -o -w line of F. M. Highway No. 1405; 5 -2p THENCE, North 760 09' 45" East 80.45 feet to an iron rod in the East r -o -w line of F. M. Highway No. 1405 set for the Northwest corner of a 15.330 acre tract of land known as Tract No. 2 of two (2) tracts of land surveyed for Willis E. Williams, et al, and situated in the Christian Smith League, Abstract No. 22, Chambers County, Texas, and being the same tract of land conveyed to S. R. Williams by C. A. Williams in a deed recorded in Vol. 13, Page 492, Deed Records of Chambers County, Texas, and said point has a plane coordinate value of X = 3,296,705.85 and Y = 724,797.38; THENCE, North 770 30' 55" East with the North B. L. of said 15.330 acre tract a distance of 600 feet to a point for corner, said corner has a coordinate value of X = 3,297,291.66 and Y = 724,927.09; THENCE, South 60 35' 48" East a distance of 1,046.12 feet to a point for corner, said corner has a coordinate value of X = 3,297,411.05 and Y = 723,887.81; THENCE, South 120 39' 00" East a distance of 750 feet to a point for corner, said corner has a coordinate value of X = 3,297,575.30 and Y = 723,156.02; THENCE, South 770 21' 00" West a distance of 508.12 feet to a point for corner, said corner has a coordinate value of X = 3,297,079.51 and Y = 723,044:74; THENCE, North 120 39' 00" West a distance of 750 feet to a point for corner, said corner has a coordinate value of X = 3,296,915.26 and Y = 723,776.53; THENCE, North 320 31' 35" West a distance of 421.47 feet to an iron rod for corner in the West r -o -w of F. M. Highway No. 1405, said corner being the Southeast corner of said aforementioned 30.507 acre tract known as Tract No. 1, and also being the Northeast corner of a 36.297 acre tract known as Tract No. 1 of two (2) tracts of land conveyed the First National Industrial District, Inc. by the First National Bank of Baytown in a deed dated April 14, 1964, and recorded in Volume 253, Page 624 of the Deed Records of Chambers County, Texas, said corner has a coordinate value of X = 3,296,688.64 and Y = 724,131.89; THENCE, South 760 46' 30" West with the South line of said 30.507 acre tract and the North line of said 36.297 acre tract of land a distance of 1661.02 feet to a point on the East bank of Cedar Bayou, said point has a coordinate value of X = 3,295,071.84 and Y = 723,751.93; THENCE, South 760 46' 30" West approximately 240 feet to the place of BEGINNING, containing all of a 30.507 acre tract and a part of a 15.330 acre tract and a part of a 286.359 acre tract. -2-