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Ordinance No. 8,584990513 -11. ORDINANCE NO. 8584 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT AGREEMENT WITH WEST BAY ORGANICS, L.C.; 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 City Manager and City Clerk of the City of Baytown to respectively execute and attest to an Industrial District Agreement with West Bay Organics, L.C. 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 May, 1999, PETE C. ALFARO, Mayor ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, S ity Attorney 0 c:klhI641CouncJ\ Ordinances \WestSayOrganicslDA.Ord ® INDUSTRIAL DISTRICT AGREEMENT BETWEEN WEST BAY ORGANICS, L.C. . AND CITY OF BAYTOWN, TEXAS 40 This Agreement is made and entered into 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 WEST BAY ORGANICS, L.C., a Texas corporation, 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 26'" day of October, 1967, designating a part of its extraterritorial jurisdiction as an Industrial District known as Baytown Industrial District No. 3; and WHEREAS, the City Council desires that all of WEST BAY ORGANICS, L.C.'s Baytown Plant and facilities as described in Appendix A, be included in the Baytown Industrial District No. 3; and further desires to enter into this contractual agreement with WEST BAY ORGANICS, L.C. for this purpose; and WHEREAS, WEST BAY ORGANICS, L.C.'s Baytown Plant includes both real and personal property within the corporate limits or extraterritorial jurisdiction of the City used in its refining and chemical manufacturing and research facilities acturing and research 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: Industrial District Agreement, Page 1 EXHIBIT A I . 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 Agreement the City of Baytown shall not apply or purport to apply any ordinance, rule or regulation to either the Industrial District area described in Appendix A or certain portions of WEST BAY ORGANICS, L.C.'s Baytown Plant and facilities which have been annexed by the City of Baytown, which areas, both annexed and otherwise, are jointly described by metes and bounds in the attached Appendix B, 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 by Appendix A 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; and (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, other than those structures that enclose a space used for sheltering any Group A, B, E, F, I, M, R, and S occupancies, as defined in the Southern Standard Building Code and that are located on the annexed property within the area described by Appendix B, but the Company does agree that any structure built within the area described by Appendix A 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 municipal services to the Company's Baytown Plant, which are located within the Industrial District or the annexed areas noted in Appendix B, 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. 4. The Company and the City of Baytown recognize that in the past the Company has paid to the City 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 necessitate increased revenue to provide expanded services and facilities. In view of this increased need for revenue, 0 Industrial District Agree rrient, Page 2 beginning in 1999, the Company agrees to pay the City of Baytown an Industrial District payment on or before December 31st of each year during the term of this Agreement, 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 the Company's Baytown Plant within the corporate limits or 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. K YEAR AIA"TION' i r PAYMENTRATE 1999 .45 2000 .48 2001 .50 2002 .50 2003 .50 2004 .50 2005 .50 2) Tax Payment: The amount paid by the Company to the City of Baytown as ad valorem taxes on that portion of the Company's Baytown Plant within the City limits. The tax payment shall be based on the value determined by the Harris County Appraisal District or such other appraisal district as may succeed the Harris County Appraisal District in assessing property for the City. 3) Industrial District Payment: Amount paid by the Company in lieu of taxes pursuant to this Agreement, which amount shall not include the tax payment paid by the Company. B. The Company's Industrial District Payment shall be calculated each year in the following manner using then above definitions: Industrial District Agreement, Page 3 • Full Value Payment Tax Payment Industrial District Payment C. The appraised value for tax purposes of the annexed portion of land, improvements, and tangible personal property shall be determined by the Harris County Appraisal District. The parties hereto recognize that said District is not required to appraise the land, improvements, and tangible personal property in the unannexed area for the purpose of computing the Industrial payments hereunder. Therefore, the parties agree that to determine the fair market value of all of the Company's 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 Harris 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 authority of the Hams County Appraisal District to establish the appraised value of land, improvements, and tangible personal property in the annexed portion for ad valorem tax purposes. D. 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. E. If any disagreement arises between the Company and Harris County Appraisal District that results in a delay in the determination of Company's fair market value, 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. Adjustments to this amount shall be made within thirty (30) days of the resolution of the disagreement. 5. Determination of City and Industrial District fair market values, in the above stated mariner, 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 Harris County, Texas, as provided for by Section 6 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 Industrial District Agreement, Page 4 ® giving effect to sound engineering valuation practices relative to service life, life expectancy, process and functional obsolescence. 0 6. 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 Harris 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, Harris County, Texas, pending final determination of the controversy beyond any further appeal. 7. 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. The City shall have a lien upon the Company's property upon any delinquency in Industrial District payment. 8. 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 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. Industrial District Agreement, Page 5 ® 9. 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, 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 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. 0 10. 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. .11. 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 percent (50 %) or more of the stock having the right to vote for the election of directors. 12. 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 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 Industrial District Agreement, Page 6 ® 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. C7 13. 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. 14. This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Company and the City only. 15. 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. 16. The Company 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. 17. 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. 18. 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 or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. 19. 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 L , 1999. Industrial District Agreement, Page 7 WEST BAY ORGANICS, L.C. Printed Name Title • ATTEST: (iwz& Z-tzb SEC TA ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ, SR., City Attomey c:\klh 141\ Lcgal\l DA\ Wcs tt3ay0rganicsVDAoMest0ayOrgan its Industrial District Agreement, Page 8 CITY OF BAYTOWN PETE C. ALFARO, Mayor • EM BIT "A" BEING a parcel or tract of land in the C14:QISTL \N Syr :TH LEAGUE. Abstract No. 22, Chambers County, Texas, and being that same parcel conveyed by Fenno D. Ball, et al. to R.D. Haden by Deed, dated March 18, 1 878, recorded in Volume B." Page 578 o Me Deed Records of Chambers County, Texas, said to contain 45.25 ac=ts of land. mcrc or less, but found upon a re- survey to contain 48.791 acres of land, and being more particularly described by metes and bounds as follows, to -wit: BEGLNINLNG at a fence post on the cast bark of Cedar Bayou, the Southwest comer of the Lizzic Wilbum Estate 34.95 acre tract and the Northwest corner of this tract; THENCE a true bearing of North 80° 12' 22" East following the common boundary between the Haden and Wilburn Estates tracts as fenced, at 1942.77 feet passed a 1.0 foot North of, and 0.35 foot West of a fence corner in the West right -of- -way of a County Road at 1975.27 feet passed the Southeast corner of said Wilburn Estate tract, in the center of said Road, and Southwest corner of the Annie Schilling Estate original 360 acre tract, as dese bed in a decd of record in Volume "H," Page 176 of the Decd Records of Chambers County, 'texas, in all a total distance of 2155.30 FCC( to the Northeast comer of this tract in the center of a County Road, said corner is situated 3.29 feet North 10° 17' 08" West of an iron rod round in said road; THENCE South 10° 17' 08" East with crntcr of a County Road and entering the right -of- -way or F.M. Highway No. 1405, and with the center of said latter named Highway, at 3.29 feet passed aforesaid iron rod, and at 991.75 feet to corner in said F.M. Highway No. 1403, the Southeast comer of this tract and the Northeast corner of the C.D. Ehrhardt so- called 45.25 acre tract; THENCE South 80° 52' 17" West at 40.0 feet crossed the West right-of-way fence of F.M. Highway No. 1405, at a fence comer, and following with a fence, a total distance of 1275.51 feet to a fence corac. a,-ld angle in the common boundary fence between the Haden tract and the Ehrhardt tract; THENCE continuing with said common boundary as fenced, South 79° 44' 37" West 886.00 feet to a post on the East bank of Cedar Bayou, the Southwest comer of this tract slid the Northwest corner of the C.D. Ehrhardt tract; THENCE with the meanders of the East bank of Cedar Bayou, North 10° 46' 53" West 591.11 feet and North 08* 39' 38" West 393.10 feet to the PLACE OF BEGINNING, containing within said boundaries, 48.791 acres of land, there being 0.993 acre in the right -of -way of said County Road and F.M. Highway No. 1405, leaving a nct acreage of 47.798 acres or land. LI Appendix B (Continued) There is no annexed property at the time of'this Agreement. Appendix B, Page 3