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Ordinance No. 7,894G 970213 -3 ORDINANCE N0. 7894 AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT AGREEMENT WITH FIRST CHEMICAL COMPANY, L.P.; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the Mayor and City Clerk of the City of Baytown to execute and attest to an Industrial District Agreement with First Chemical Company, L.P. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. 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 the 13th day of February, 1997. .C.& C' PETE C. ALFARO, Mayor ATTEST: C EILEEN P. HALL, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, , City Attorney • c:l council lmeetingslfebruary\firstida.13 E INDUSTRIAL DISTRICT AGREEMENT BETWEEN FIRST CHEMICAL TEXAS, L.P. AND CITY OF BAYTOWN, TEXAS This Industrial District Agreement (the "Agreement ") is made and entered into effective as of the last date written herein by and between the CITY OF BAYTOWN, Texas, a municipal corporation in Harris County and Chambers County, Texas, hereinafter also referred to as "Baytown" or "City," and FIRST CHEMICAL TEXAS, L.P., a Delaware limited partnership, hereinafter referred to as "Company." WITNESSETH: 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, (now TEX. LOC. GOVT CODE ANN. § 42.044) which 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 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 (the "Industrial is District "); and H000159962.3 EXHIBIT A • WHEREAS, the City Council desires that all of the First Chemical Texas, L.P. Baytown Plant and facilities as described in Appendix- A;,:bz i cluded in the Baytown Industrial District No. 3; S and further desires to enter into this contraciukagreerrient with First.Chemical Texas, L.P., for this purpose; and WHEREAS, the First Chemical Texas, LIP. Baytown Plant includes personal property, (including, without limitation, machinery' , equipment and leasehold improvements) within the extraterritorial jurisdiction of the City used in its chemical manufacturing facilities, and includes 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 agreed by and between the Company and the City of Baytown as follows: 1. The findings contained in the preamble hereof are declared to be true and correct and are hereby adopted. 2. The City of Baytown hereby agrees that all of the land and improvements thereon owned, used, occupied, leased, rented or possessed by the Company within the area designated as Baytown Industrial District No. 3 by Ordinance No. 899 and amendments thereto shall continue its extraterritorial status as an Industrial District: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, except for such parts of Company's property as may be necessary to annex in order to annex property owned by third parties within the Industrial District that the City may decide to annex. The City further agrees, promises and guarantees that during the term of this 0 Agreement the City of Baytown shall not apply or purport to apply any ordinance, rule or regulation HOUO3:599623 -2- C to the First Chemical Texas, L.P. Baytown Plant described in Appendix A and located within the area depicted in Appendix B or as hereinafter expanded within the Industrial District, except as relating to noise, vibration, drainage or flood control, and pollution performance standards as hereinafter provided. Specifically, but without limitation, the City agrees, promises and guarantees that it will not extend to the property described in Appendix A or on which any new construction is located provided the same is within the Industrial District, any ordinance, rule or regulation (a) governing plats and the subdivision of land; (b) prescribing any zoning, building, electrical, plumbing or inspection code or codes; or (c) attempting to exercise in any manner whatsoever control over the conduct of the Company's business thereof. The Company shall not be required to obtain building permits for construction of structures, but the Company does agree that any structure built within the Industrial District shall be built in accordance with the latest edition of the Southern Standard Building Code. 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 the Company within the Industrial District. 3. It is further agreed that during the term of this Agreement the City of Baytown shall not be required to furnish those municipal services to the First Chemical Texas, L.P. Baytown Plant, which is located within the Industrial District, 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. W0003:59962.3 -3- • 4. The City of Baytown agrees that, pursuant to City of Baytown Resolution No. 1253 �11 passed July 27, 1995, the First Chemical Texas, L.P. Baytown Plant described in Appendix A is considered to be qualifying new construction as defined in the Resolution in that it is estimated that the First Chemical Texas, L.P. Baytown Plant will have a value of $40,000,000 upon completion of construction. 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 services and facilities. In view of this increased need for revenue, beginning in 1997, the Company agrees to pay the City of Baytown an Industrial District Payment on or before December 31 st of each year, such payment to be calculated on the basis of the below stated formula: A. In applying the below stated formula, the following definitions shall apply; 1) Full Value Payment: The fair market value as determined by the City, of all of First Chemical Texas, L.P.'s Baytown Plant within the extraterritorial jurisdiction of the City, multiplied by the property tax rate per $100.00 of assessed valuation adopted by the City Council for the City of Baytown for financing the fiscal year in which such December due date falls, and multiplied by the applicable industrial payment rate as detailed below. HOUO3:59962.3 -4- • 0 2) Industrial District Payment: Amount paid by the Company in lieu of taxes pursuant to this Agreement. B. The appraised value for tax purposes of the improvements and tangible personal HOUO3:59962.3 property comprising the First Chemical Texas, L.P. Baytown Plant shall be determined in accordance with the Texas Property Tax Code. The parties agree that to determine the fair market value of all of the First Chemical Texas, L.P. Baytown Plant in accordance with the market value computation contemplated in the Texas Property Tax Code for the purpose of calculating the Industrial District payment in the manner described above, the City may choose to use an appraisal of the Chambers County Appraisal District, or an appraisal conducted by the City of Baytown, and/or an independent appraiser of the City's selection, and at the City's expense. This value shall be, used in determining the full value payment described above. Nothing contained herein shall ever be construed as in derogation of the -5- 1998 0% 1999 0% 2000 20% 2001 30% 2002 40% 2003 50% 2004 50% 2) Industrial District Payment: Amount paid by the Company in lieu of taxes pursuant to this Agreement. B. The appraised value for tax purposes of the improvements and tangible personal HOUO3:59962.3 property comprising the First Chemical Texas, L.P. Baytown Plant shall be determined in accordance with the Texas Property Tax Code. The parties agree that to determine the fair market value of all of the First Chemical Texas, L.P. Baytown Plant in accordance with the market value computation contemplated in the Texas Property Tax Code for the purpose of calculating the Industrial District payment in the manner described above, the City may choose to use an appraisal of the Chambers County Appraisal District, or an appraisal conducted by the City of Baytown, and/or an independent appraiser of the City's selection, and at the City's expense. This value shall be, used in determining the full value payment described above. Nothing contained herein shall ever be construed as in derogation of the -5- authority of the Chambers County Appraisal District to establish the appraised value of land, improvements, and tangible personal property in the Industrial District for ad valorem tax purposes. C. It is agreed by the parties that the City has the power to and shall create an Industrial District Review Board which shall carry out the duties designated to it in this Agreement. D. If any disagreement arises between the Company and the Chambers County Appraisal District that results in a delay in the determination of the fair market value of the Company's Baytown PIant, the Company shall pay to the City of Baytown on the due date the same amount which was paid to the City for the last preceding period as to which there was no controversy concerning the fair market value of the Company's Baytown Plant. Adjustments to this amount shall be made within thirty (30) days of the final resolution of the disagreement. 5. furthermore, the City hereby agrees that for all new construction of the Company, which is located within Industrial District No. 3 with a value greater than $20 million, the industrial district payment shall be calculated, subject to the limitations provided herein, as the fair market value, as determined by the City of each new construction project multiplied by the property tax rate per $100.00 of assessed valuation adopted by the City Council of the City of Baytown for financing the fiscal year in which such December due date falls, and multiplied by the applicable new construction industrial district payment rate as detailed below. Such computation shall yield a product which, for purposes of this agreement, shall be referred to as the "new construction industrial 4) district payment." H0003:5996 2.3 -6- 0 Such new construction industrial district payment rate shall apply only to qualified, new construction and then only to the extent that the value of the First Chemical Texas, L.P.'s Baytown Plant located in Industrial District No. 3, exclusive of such qualified, new construction, equals or exceeds the market value of the Company's entire facility as of January 1 of the year immediately preceding the year in which this Agreement becomes effective. If, however, in any year, the market value of the Company's property is less than such amount, then value of the new construction shall be added to the market value, and if such sum equals or exceeds the market value of the Company's entire facility as of January 1 of the year immediately preceding the year in which this Agreement becomes effective, the value in excess of such amount shall be a factor in computing the new construction industrial district payment. This new construction industrial district payment shall first become effective as of January 1, immediately following the date of the start of construction, if such construction qualified as "new construction," as hereinafter defined, upon the earlier of the final completion of the new construction or the expiration of two years from the date of the notice of the start of construction. The City may allow, in its sole discretion, an extension of time to the Company in the event of unavoidable circumstances or a force majeure that causes a delay to the Company in completing construction, but 40 HOUO3:59962.3 -7- 0 nothing contained herein shall obligate the City to grant such an extension. For purposes of determining whether new construction is qualified for the new construction industrial district payment calculation, the City shall verify that the fair market value of the new construction after the expiration of two (2) years from the effective date of the new construction industrial district payment computation, equals or exceeds $20 million dollars. Thus, if after the two year period, the fair market value of the new construction is less than $20 million, the difference between the amount that would have been paid pursuant to the industrial district payment calculation and the amount actually paid pursuant to the new construction industrial district payment shall be recaptured by the City and shall be paid within sixty (60) days after written notice of the non - qualification of the new construction for the new construction industrial district payment computation by the City or its designee to the Company. In no case, shall the period to which the new construction industrial district computation applies, inclusive of construction and completion, extend beyond the term of this agreement. The term "new construction" as used in this paragraph shall mean permanent buildings and structures, fixed machinery, fixed equipment and process units, site improvements and that office space and related fixed improvements necessary to the operation and administration of the Company, all of which commence subsequent to the effective date of this Agreement and whose value will exceed $20 million. "New construction" shall not include land, inventories, supplies, tools, furnishings and other forms of movable personal property, vehicles, vessels, aircraft, housing, hotel accommodations, deferred maintenance investments, property to be rented or leased, any improvements, including, but not limited to, those which produce, store, or distribute natural gas, Ofluids, or gases which are not integral to the operation of the facility, property that has an expected H0003:59962.3 -8- ® useful life of less than fifteen (15) years, or any property owned or used by the State of Texas or its political subdivisions or any organization owned, operated or directed by a political subdivision of the State of Texas. Throughout the term of this Agreement, all new construction shall be valued separately and included in the aforementioned industrial district payment only to the extent that the value of the new construction is not subject to the new construction industrial payment district computation. In the event that the Company allows all or any part of its new construction industrial district payment to become delinquent, this portion of the Agreement, dealing specifically with new construction, shall be null and void; and all payments previously reduced by virtue of this section (i.e., the difference between the industrial district payment and the new construction industrial district payment) shall be recaptured and paid within sixty (60) days of the delinquency date. The Owner shall send written notice to the City of the date of the start of construction on or before thirty (30) days after project approval by the Company; provided, that if any project approval by the Company occurred prior to the effective date of this agreement in the year in which this contract is executed, such notice shall be due on or before thirty days (30) after the execution of this agreement. Such notice shall include a description of the project along with a verified statement of an officer of the Company, who has the authority to bind the Company, that the project qualifies as new construction as defined herein and should be subject to the new construction industrial district payment. The Company agrees that the failure to provide the City with this notice prior to the start of construction shall constitute a waiver of any right or privilege to calculate the amount due to the City based on the new construction industrial district payment rate and that such new construction 4) shall be factored into the full industrial district payment as described in section 4 of this Agreement. HOUOM9952.3 -9- ® 6. Determination of City and Industrial District fair market values, in the above stated 0 manner, shall be made by the City of Baytown and approved by the Industrial District Review Board. Such final fair market value as approved by the Industrial District Review Board shall be final and binding unless either party within thirty (30) days after receipt of the Board's determination petitions for a Declaratory Judgment to the Civil District Court of Chambers County, Texas, as provided for by Section 7 hereof. In determining the fair market value of property and improvements as used herein, the Industrial District Review Board shall base its determination on the fair market value as defined in article 4(c) herein, giving due consideration to comparable present day facilities considering and giving effect to sound engineering valuation practices relative to service life, life expectancy, process and functional obsolescence. 7. If any disagreement arises between the parties concerning the interpretation of this Agreement, it is agreed that either of the said parties may petition any Civil District Court of Chambers County, Texas, for a Declaratory Judgment determining said controversy and the cause shall be tried as other civil causes in which the Plaintiff must establish by a preponderance of the evidence the correct interpretation of valuation. Pending final determination of said controversy, the Company shall pay to the City of Baytown on the due date the same amount which was paid to the City for the last preceding period as to which there was no controversy concerning the amount owed by the Company to the City. The Company agrees to tender the amount of potential liability to the registry of the Civil District Court, Chambers County, Texas, pending final determination of the controversy beyond any further appeal. 140003:59962.3 -10- 0 8. All payments to the City of Baytown provided 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 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 the Company's property upon any delinquency in Industrial District payment. 9. If any other municipality attempts to annex any land or property owned, used, occupied, leased, rented or possessed by the Company 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 such land or property, the City of Baytown shall, with the cooperation of the Company, seek injunctive relief 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 attorneys, fees (other than the City Attorney) retained by mutual agreement of the parties, shall be paid by the Company. Should the City refuse or fail to comply with its obligations under this paragraph, the Company 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, the Company may join the City as a party to such legal action. If the City and the Company are unsuccessful in preventing any such attempted annexation or incorporation, the Company 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 ® the Company may continue this Agreement in full force and effect; provided, however, that the H0003:59962.3 -11- 0 Company's right to terminate 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 the Company to the City of Baytown after the effective date of such annexation or incorporation and if the Company elects to terminate this Agreement as above provided, then as to such property so annexed or incorporated such payment shall be refunded by the City to the Company. 10. The City of Baytown and the Company 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 industries located in the Baytown Industrial District No. 3, and that development within the District may have an impact on the drainage of surrounding areas. To this end, the Company and the City agree that the same standards and criteria relative to noise, vibration and toxic levels and drainage and flood control which are adopted by the City and made applicable to portions of the City adjacent to the Company's Baytown Plant shall also be applicable to the plant within the Industrial District. The Company further agrees to abide by the rules and regulations and the permits issued to it by the Environmental Protection Agency, the Texas Natural Resource Conservation Commission, 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 responsibility for enforcing air and water quality standards, and it is agreed that so long as the Environmental Protection Agency, the Texas Natural Resource Conservation Commission, the Texas Air Control Board, and other related agencies are charged with such responsibility, nothing contained herein shall be construed to impose upon the City of Baytown any responsibility, authority or right, by termination of this H0003:59962.3 -12- ® Agreement or otherwise to enforce any standards relative to air and water quality as are established by law, rule, regulation or permit. It is also agreed that no violation of any standards or criteria adopted by the City shall be a reason for termination of this Agreement. 11, This Agreement shall be for a term of seven (7) years from the date this instrument is executed and for such additional period or periods of time as provided by the Texas Municipal Annexation Act and mutually agreed upon the parties hereto. 12. The benefits accruing to the Company under this Agreement shall also extend to the Company's "affiliates" and to any properties owned or acquired by said affiliates within the area encompassed by Industrial District No. 3, and where reference is made herein to land, property and improvements owned by the Company, that shall also include land, property and improvements owned by its affiliates. The "affiliates" as used herein shall mean all companies with respect to which the Company directly or indirectly through one or more intermediaries at the time in question, owns or has the power to exercise the control over fifty (50 %) percent or more of the stock having the right to vote for the election of directors. 13. 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, the Company 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 the Company, the City shall be entitled, ® in addition to any action at law for damages, to obtain specific performance of this Agreement and HOUO3:59962.3 -13- ® 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 the Company's violation of any standard or criteria relative to air emissions, water effluents, noise, vibration, or toxic levels, or drainage and flood control established by any law, ordinance, rule, regulation or permit. 14. In the event the terms and conditions of this Contract are rendered ineffective or their effect changed by the Constitution, any Legislative changes, or any interpretation of the Texas Property Tax Code by the State Tax Assessment Board, both parties mutually agree that said Contract shall be renegotiated to accomplish the intent of this Agreement. 15. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit First Chemical Texas, L.P. and the City only. 16. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. 17. First Chemical Texas, L.P. shall not sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the City. 18. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. 19. This Agreement shall in all respects be interpreted and construed in accordance with ® and governed by the laws of the State of Texas and the City, regardless of the place of its execution H0003:59962.3 -14- 0 or performance. The place of making and the place of performance for all purposes shall be Baytown, Chambers County, Texas. 20. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he represents. EXECUTED IN DUPLICATE ORIGINALS this the day of , 1997. ATTEST: OWNER: FIRST CHEMICAL TEXAS, L.P. By: FIRST CHEMICAL TEXAS, INC., itstiG r�t ral Partner Secretary ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attorney E+ou03:59962.2 -is- Y: u Ge ge M. Simmons Its: President CITY OF BAYTOWN PETE C. ALFARO, Mayor 7� APPENDIX "A" First Chemical has entered into a long term lease with Bayer Corporation whereby First Chemical leases a 4.178 acre tract of land and a .310 acre tract of land located in the Miles Reinvestment Zone in Chambers County, Texas. The site is currently unimproved, but First Chemical proposes to construct an aniline manufacturing facility on the site with construction commencing after January 1, 1997. The improvements, fixed machinery and equipment for which abatement is requested are as follows: One- Carbon steel low pressure gas phase catalytic reactor system, associated structure and equipment One - Carbon steel low pressure product separation system and distillation columns, associated structure and equipment One -Low pressure carbon steel waste water stripping unit, associated structure and equipment Two -Glass lined/low pressure /liquid phase reactor systems, associated structure and equipment One -Glass lined/low pressure sulfuric acid recovery system, associated structure and equipment One - Stainless steel low pressure product washing system, associated structure and equipment One- Stainless steel low pressure product separation system, associated structure and equipment One- Carbon steel distillation column and associated equipment, associated structure and equipment One -Low pressure carbon steel wastewater stripping unit, associated structure and equipment One - Stainless steel raw material unloading system One- Maintenance /Warehouse Shop One- Administration Building One - Control Room/Motor Control Center/Laboratory multipurpose building One- Cooling water tower and accompanying distribution system Seven - Storage tanks One - Electrical power transformation and distribution system One - General sitework including roads and drainage One -Water distribution system (including firefighting) 14OUO3:59962.3 0 APPENDIX "B" 35 F a iJ i Z. all I�`'' ` — — � 1 • .I � `,t. 2222 z t i 1 I 1 •� o � 1 11 I 1 1 yl 1 �•� - 1 111 i _ I o s- to • 1 1 �. �1' it 1 . I�. - I 1 • I 1 � s t� 1 - - , �° - r . roe( . 6,) ,t ray I lu o f m IL m Y 1 I I co CD