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Ordinance No. 9,674ORDINANCE NO. 9674 ' ® AN ORDINANCE OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN INDUSTRIAL DISTRICT AGREEMENT WITH RHODIA INC.; 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 Rhodia Inc., which agreement is consistent with the Industrial District Policy for industries which had an Industrial District Agreement in effect with the City of Baytown on July 26, 2002, which policy was adopted by the City Council on April 24, 2003, via Resolution No. 1584. A copy of said Industrial District Agreement is attached hereto, marked Exhibit "A." Both the Industrial District Agreement and Resolution No. 1584 by this reference are made a part hereof 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 25`h day of November, 2003. 491, � d PETE C. ALFARO, Nfayor ATTEST: GARY V. SMT_TH, City Clerk APPROVED AS TO FORM: -- W NACIO RAMIREZ, R City Attorney 40 FAKaren\ Files \City Council \Ordinances \RhodialDA.Ord.doc • Industrial District' Agreement This Industrial District Agreement ( "Agreement ") is made and entered into between the City of Baytown, Texas, a municipal corporation in Hams. and Chambers Counties, Texas, hereinafter also referred to as "Baytown" or "City," and Rhodia Inc., a Delaware corporation, hereinafter referred to as "Property Owner." In consideration of the promises and of the mutual covenants and agreements herein contained, it is agreed by and between the City and Property Owner as follows: 1. Parties This Agreement is made under the authority of Texas Local Government Code Annotated §42.044 (Vernon 1993), article XI, §5 of the Texas Constitution and other applicable law. The parties to the Agreement and their addresses are: 1. The "City'•' City of Baytown Attn: City Manager P.O. Box 424 Baytown, TX 77522 Copy to: City of Baytown Attn: City Attorney P.O. Box 424 Baytown, TX 77522 2. The "Property Owner" Tax Statement Address: Rhodia Inc. Rhodia Inc. Attn: Gary Ford Attn: Donald Rozum CN 7500 8615 Manchester Blvd. Cranbury, N7 08512 -7500 Houston, TX 77012 II. Identification of Property and Industrial District This Agreement includes provisions concerning certain real estate and tangible personal property owned or leased by the Property Owner. Real estate located outside the corporate limits of the City is sometimes referred to herein as the "affected area," and it is described in Exhibit A, which is attached to this Agreement and made a part hereof. Acting pursuant to the above mentioned authority, the City Council of the City has by ordinance, designated the affected area as FMIBIT A ® an industrial district, the same to be known as Baytown Industrial District No. 1 (the "Industrial District "). III. Term The term of this Agreement is seven years, from September 1, 2003, through August 31, 2010, unless it is sooner terminated under the provisions hereof. This Agreement shall be effective and binding on the parties hereto upon execution hereof on behalf of the parties to this Agreement. This Agreement supersedes any prior existing agreements between the Property Owner and the City relating to the subject matter hereof and governing the affected area; to the extent any such prior existing agreement required payment on or after January 1, 2003, such payment obligations are hereby canceled and are superseded by the provisions contained herein. If at the time of execution of this Agreement, the Property Owner has already made payment to the City due on or after January 1, 2003, under any such prior existing agreement, then the difference between that payment amount and the amount of the first payment due hereunder shall be calculated and shall be refunded by the City or paid by the Property Owner, as the case may be. Such refund or supplemental payment shall be due within 30 days following receipt of an invoice therefor and, if not timely paid shall become delinquent 31 days after receipt of such invoice. IV. Limited Immunity from Annexation by the City In consideration of the obligations of the Property Owner herein set forth, the City hereby guarantees for the term of this Agreement the immunity of the affected area from annexation of any type by the City except for such parts of the affected property as may be necessary to annex property o caned b y t hird parties within the Industrial District that the City may decide to annex. Additionally, this Agreement shall not affect the continuation of any limited purpose annexation status to which the affected area is now subject. V. Industrial District Pam As part of the consideration for the City's undertakings as set forth above, the Property Owner agrees to pay to the City on or before December 3151 of each year during the term hereof a sum of money equal to: (1) the fair market value as determined by the City, of all of the Property Owner's land and all other tangible property, real, personal or mixed, within the affected area and of all the Property Owner's land and all other tangible property, real, personal or ® mixed, within the corporate limits of the City: > on January 1, 2002, or chart: 9 as most recently certified by the chief appraiser of the appraisal district and/or approved by the Industrial Appraisal Review Board established and appointed by the City Council, as of the date of this Agreement, whichever is greater, hereinafter referred to as the "Base Year," multiplied by (2) the property tax rate per $100.00 of assessed valuation adopted by the City Council for the City, multiplied by the applicable industrial district payment rate as detailed below, less (2) the amount actually paid by the Property Owner to the City as ad valorem taxes on that portion of the Property Owner's property, real, personal and mixed, within the corporate limits of the City. 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. The applicable Industrial District Payment Rate shall be determined using the following PAYMENT YEAR INDUSTRIAL DISTRICT PAYMENT RATE 1 .50 2 + .55 3 .55 4 .55 5 .60 6 .60 7 .60 VI. Valuations For the purpose of providing a procedure for determining and collecting the amounts payable by the Property Owner hereunder, there are hereby adopted and made a part hereof all provisions of the Constitution and statutes of the State of Texas pertaining to ad valorem taxation as amended throughout the term of this Agreement (including, in particular, the Texas Property Tax Code), except, however, that (i) to the extent that any of such provisions would require the assessment of the Property Owner's property on an equal and uniform basis with property in the general corporate limits of the City, the provisions of this Agreement will control where in conflict with the provisions of such laws and (ii) the income method of appraisal as described in Section 23,012 of the Texas Property Tax Code shall not be limited to only properties for which a rental market exists. S pecifically, nothing contained herein shall limit the income method of appraisal specified in Section 23.012 of the Texas Property Tax Code to only properties for which a rental market exists, instead if such method is used, the chief appraiser shall: C ® 1. use income and expense data pertaining to the property, if possible and applicable; 2. make any projections of future income and expenses only from clear and appropriate evidence; 3. use data from generally accepted sources in determining an appropriate capitalization rate; 4. determine a capitalization rate for income - producing property that includes a reasonable return on investment, taking into account the risk associated with the investment. A. Valuation of Property Inside the _Corporate Limits The payments required hereunder shall be based upon the appraised value for the Base Year, as finally determined by the Harris County Appraisal District or its legal successor (or through administrative or judicial appeal of the Harris County Appraisal District's determination), for (1) the land within the corporate limits of the City and owned by the Property Owner as of January 1 of the Base Year, and (ii) all improvements and tangible property, real or mixed, situated within the corporate limits of the City and owned by the Property Owner as of January 1 of the Base Year. B. Valuation of Property Outside the Comorate Limits The p arties h ereto r ecognize t hat s aid H arris C ounty A ppraisal D istrict i s n of required to appraise the land, improvements, and tangible property, real or mixed, in the affected area, which is not within the corporate limits of the City, for the purpose of computing the payments hereunder. Therefore, the parties agree that to determine the fair market value of all of the Property Owner's land, improvements, and tangible property located outside the corporate limits of the City in accordance with the market value computation contemplated in the Texas Property Tax Code for the purpose of calculating the Property Owner's payment in the manner described above, the City may choose to use the appraised value for the Base Year, as finally determined by the Harris County Appraisal District (or through administrative or judicial appeal of the Harris County Appraisal District's determination), or by appraisal conducted by the City and/or by an independent appraiser of the City's selection, and at the City's expense. Nothing contained herein shall ever be construed as in derogation of the authority of the Harris County Appraisal District to establish the appraised value of land, improvements, and tangible personal property in the annexed portion for ad valorem tax purposes. C. Binding Effect Determination of Industrial District fair market values in the above - stated manner outside the corporate limits shall be made by the City and approved by the Industrial Appraisal Review Board. Such final fair market value as approved by the Industrial Appraisal 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 XIII hereof In determining the fair market value of property and 11 iimprovements as used herein, the Industrial District Appraisal Board shall base its determination on the fair market value as defined in Section VI 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. D. . ,tAtPm PntS The City shall mail one statement to the Property Owner on or about December 1 of each year showing the total amount due on December 31 of such year pursuant to this Agreement. Such statement shall be mailed to the "Tax Statement Address" noted in this Agreement. Any amounts due on December 31 that are not paid when due shall become delinquent on January 1 of the following year. Provided, however, if the tax statement is mailed after December 10, the delinquency date is postponed to the first day of the next month that will provide a period of at least 21 days after the date of mailing for payment of the amount due. Delinquent amounts shall be immediately subject to the same penalties, interest, attorneys' fees and costs of collection as recoverable by the City in the case of delinquent ad valorem taxes. The City shall have a lien upon the Property Owner's land within the affected area upon any delinquency in the Industrial District Payment. E. Valuation Contests If any differences concerning the appraised values shall not have been finally determined by the due date of the Property Owner's payment hereunder and the Property Owner desires to pursue any additional available remedies, the Property Owner shall, without prejudice to such remedies, pay to the City by December 31 of each year (subject to the exception in the preceding paragraph for statements mailed after December 10), such amount as is provided in the Texas Property Tax Code, as amended throughout the term of this Agreement, for payments made under such conditions by owners of property within the general corporate limits of the City subject to ad valorem taxation. Any refund payable by the City to the Property Owner hereunder shall be paid within 60 days after receipt by the City of both Harris County Appraisal District's form notification that the appraised value of the property has been reduced and a written refund request by the Property Owner; if not paid timely, the refund amount shall bear interest at eight percent per annum beginning 60 days after the City received both the Property Owner's written refund request and the Harris County Appraisal District's formal notification that the appraised value of the property has been reduced. VII. Compliance with Law The City and the Property Owner 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 Industrial District, and that ® development within the District may have an impact on the drainage of surrounding areas. To this end, the Property Owner and the City agree that the same standards and criteria relative to noise, E 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 Industrial District shall also be applicable to the affected area. The Property Owner agrees that any industrial or other activity carried on within the affected area will be constructed in strict compliance with all applicable valid state and federal air and water pollution control standards. If the Property Owner's property within the affected area is subject to the Occupational Safety and Health Act, 29 U.S.C. 65, et seq., as amended, then the Property Owner shall undertake to ensure that its facilities and improvements in the affected area comply with the applicable fire safety standards of such act and the resolutions from time to time promulgated hereunder (the "OSHA Standards "), but there shall be no obligation to obtain any permits of any kind from the City in connection with the construction, operation or maintenance of improvements and facilities in the affected area not located within the corporate limits of the City. Nonetheless, the Property Owner agrees that any structure built within the affected area shall be built in accordance with the building code adopted by the City in effect at the time of construction. The City and the Property Owner recognize that activities in the City's industrial districts are subject to regulation by other governmental entities, including the state and federal governments and their various departments and agencies. The City and the Property Owner also recognize that the City may have an interest in activities in the City's industrial districts that are regulated by other governmental entities. Nothing in this Agreement is intended to limit the City's right and authority to communicate its interest in, or opposition to, those activities to the applicable regulatory agencies or to participate, to the extent allowed by law, in any related administrative or judicial proceeding. VIII. Inspections The Chief Appraiser of the Harris County Appraisal District and the City or its independent appraiser shall have the same right to enter and inspect the Property Owner's premises and the same right to examine the Property Owner's books and records to determine the value of the Property Owner's properties as are provided in the Texas Property Tax Code as amended. 1X. Default A. Default by Property Owner In the event of default by the Property Owner in the performance of any of the terms of this Agreement, including the obligation to make the payments above provided for, the City shall have the option, if such default is not fully corrected within sixty (60) days from the giving of written notice of such default to the Property Owner to either (1) declare this Agreement terminated or (ii) continue the term of this Agreement and collect the payments required hereunder. Notwithstanding any to the contrary contained herein, should the City determine the Property Owner is in default according to the terms and conditions of Section VII hereof, the City shall notify the Property Owner in writing by U.S. Mail, certified return receipt requested, at the address stated in this Agreement, and if such default is not cured within sixty (60) days from the date of such notice (the "Cure Period ") then such failure to cure shall constitute a material breach of this Agreement; provided that, in the case of a default under Section VII for causes beyond the Property Owner's control that cannot with due diligence be cured within such sixty (60) day period or in the event that the failure to cure results from ongoing negotiations with federal or state officials, administrative proceedings or litigation regarding the necessary cure steps, then the cure period shall be extended until such negotiations, administrative proceedings or litigation are concluded. B. Default by City In the event of default by the City, the Property Owner may, if such default is not fully corrected within 60 days from giving written notice of such default to the City, terminate this Agreement. Upon such termination, both the Property Owner and the City shall be relived of all further obligations hereunder, but the Property Owner shall not be relieved of the obligation to pay any amounts that accrued prior to such termination. In the event of termination, the City shall have the right to repeal the ordinance designated the affected area as an industrial district. Provided, however, if the termination occurs as a result of the City's exercising its option to terminate (as provided in the first sentence of this Section IX), the City shall not have the right to annex the affected area into the general corporate limits of the City so as to subject the affected area to ad valorem taxes for any part of the period covered by the Property Owner's last payment hereunder. X. Nntire Any notice to the Property Owner or the City concerning the matters to which the Agreement relates may be given in writing by registered or certified mail addressed to the Property Owner or the City at the appropriate respective addresses set forth on the cover page of this Agreement. Any such notice in writing may be given in any other manner. If given by registered or certified mail, the notice shall be effective when mailed. With the exception of annual bills for payments due herein, notice given in any other manner shall be effective when received by the Property Owner or the City, as the case may be. XI. No Further Expansion of Taxing Jurisdiction Nothing herein contained shall be construed to change or enlarge the jurisdiction, power or authority of the City over or with respect to the affected area as prescribed by applicable law, except as specifically provided in this Agreement. The Property Owner shall not be obligated by virtue of this Agreement, or the establishment of the industrial district covering the affected area not within the corporate limits of the City, to make any payments to the City in the nature of a tax or assessment based upon the value of the Property Owner's property in the affected area during the • term of this Agreement other than the payments specified herein. Specifically, the Property Owner 7 ® shall not be liable for any City taxes within the affected area, including, without limitation, City ad valorem taxes on taxable property within the affected area. X11. Reimbursement for Services If the Property Owner requests and receives mutual aid firefighting assistance and is a member of Channel Industries Mutual Aid organization ( "CIMA ") or similar organization, the Property Owner shall reimburse the City for costs incurred by the City in providing fire protection services to the Property Owner as shall be provided in the charter, bylaws and agreements pursuant to which CIMA or such similar organization is organized and operates. If the Property Owner requests and receives mutual aid firefighting assistance and is not a member of CIMA or a similar organization, then the Property Owner shall be required to reimburse the City for costs actually expended by the City in providing any firefighting assistance to the Property Owner, including chemical and personnel costs. XIII. Declaratory_ Judgment Action 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. If the controversy affects an Industrial District Payment, the Property Owner shalt, pending final determination of said controversy, pay to the City 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 Property Owner to the City. The Property Owner agrees to tender any additional 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. XIV. Assignment This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Property Owner and the City only. If the Property Owner conveys all or any part of the property then covered hereby, the Property Owner shall notify the City within 30 days of the conveyance and shall thereafter cease to be obligated with respect to the property so conveyed and the Base Value shall be apportioned between the Property Owner and the grantee based upon the property conveyed, only if the grantee thereof enters into an Industrial District Agreement with the City with respect to such property so conveyed. No right or obligation under this Agreement may ® be sold, assigned or transferred. ® XV. Authority The Property Owner covenants that it has the authority to enter into this Agreement by virtue of being either the legal or equitable owner of a possessory estate (including a leasehold estate) in the land comprising the affected area, which will not terminate before the expiration date of this Agreement. Additionally, 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. XVI. No Municipal Services It is agreed that during the term of this Agreement, the City is under no obligation to provide any governmental, proprietary or other municipal services to the affected area. Specifically, but without limitation, it is agreed that the City 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. XVII. Severability If any provision of this Agreement, or any covenant, obligation or agreement contained herein, including, without limitation, that term hereof, is determined by a court to be invalidated or unenforceable, such provision, covenant, obligation or agreement shall be reformed so as to comply with applicable law. If it is not possible to so reform such provision, covenant, obligation or agreement, such determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained herein. Provided, further that such invalidity or unenforceability shall not affect any valid and enforceable provision thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. Notwithstanding the above, if the application of this Section XVI requires reformation or revision of any term that removes or materially diminishes the obligation of the Property Owner to make the payments to the City described herein (except in the event of a reformation that shortens the term of this Agreement), the City shall have the option to declare this Agreement terminated. XVIII. Complete Agreement 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. 9 XIX. Non - waiver 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. XX. Ambiguities In the event of any ambiguity in any of the terms of this Agreement, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. XXI. Headings The headings appearing at the first of each numbered section in this Agreement are inserted and included solely for convenience and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. XXII. Choice of Law; Venue 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. XXIII. Agreement Read The parties acknowledge that they have read, understand and intend to be bound by the terms and conditions of this Agreement. IN WITNESS WHEREOF, this Agreement is executed in multiple counterparts on behalf of the Property Owner this —Ztt., day of ti� , �,,��. , 2003, and on behalf of the City this day of 12003, 10 • ATTEST: / — z'-? �' A-,, � � ecreta ATTEST: GARY W. SMITH, City Clerk APPROVED AS TO FORM: ZV< 4 M tN , City Attorney ONNA SAMS, Finance Director RHODIA INC. Printed blame Titl CITY OF BAYTOWN PETE C. ALFARO, Mayor 0 F:Veanene\My Documents\ Cont ractsUDA \RhodialDARenewal2003.doc 11 • BEING A 7.794 -acre tract of land out of a 1466.44 acre tract in the William Scott Upper League, Hams County, Texas, acquired by Humble Oil & Refining Company under deed dated May 22, 1919 recorded in volume 435 at Page 413 of the Deed of Records of Harris County, Texas, reference being hereby made thereto for all purposes, said 7.794 acre tract of land being more particularly described as follows: BEGINNING at the point where the south right -of -way line of the Wooster -Cedar Bayou 60 feet public road intersects the east line of the aforesaid 1466.44 acre tract, in the William Scott Upper League, Harris County, Texas; THENCE South 86 degrees 13' West, along the south right -of -way line of said Wooster -Cedar Bayou Road, 2719.63 feet to a point, said point being the POINT OF BEGINNING of the 7.794 -acre tract herein described; THENCE South 32 degrees 18' West, parallel to and 50 feet perpendicular from the center line of San Jacinto Street, 703.52 feet to a point; THENCE North 57 degrees 42' West, 965.16 feet to a point on the south right -of -way line of the Wooester- Cedar Bayou Road; THENCE North 86 degrees 13' East, along the south right -of -way line of the Wooster -Cedar Bayou Road 1194.37 feet to the point of BEGINNING, containing 7.794 acres of land. EMIT A 90145097.01 GRANTOR expressly excepts from this conveyance and reserves unto itself, its successors and assigns: (1) All the oil, gas, water and other minerals in, under and that may be produced from the premises hereby conveyed together with the full and exclusive right of prospecting for, drilling for, producing, saving, treating, transporting and marketing said minerals and the full right of ingress egress on, under and upon said land for such purposes, this conveyance being of the surface estate of said land only; and (2) An easement and right of way to lay, maintain, operate, change, replace and remove a pipe line or pipe lines, and appurtenances and accessories thereto, for the transportation of various including but without limitation oil, gas, water and their products in on and under the following described 1.45 acre strip of land out of the premises there conveyed together with the right of ingress and egress for all purposes necessary or incidental thereto: ` is- BEGINNING at a point on the south right -of -way line of said Wooster -Cedar Bayou Road, said point being the point of beginning of the above described 7.794 acre tract and the POINT OF BEGINNING of the strip of land herein described: THENCE South 32 degrees 18 min. West parallel to and 50 feet perpendicular from the center line of San Jacinto Street, 204.00 feet to a point; THENCE North 57 degrees 42 min. West, 50 feet to a point; THENCE North 32 degrees 18 min. E. 105.69 feet to a point: THENCE South 86 degrees 13 min West, parallel to and 50 feet perpendicular form the south right -of -way lines of the Wooster - Cedar Bayou Road, 1027.83 feet to a point; THENCE North 57 degrees 42 min. West 84.58 feet to a point on the south right -of -way liens of the Wooster -Cedar Bayou Road; THENCE North 86 degrees 13 min. east along the south right -of way line of the said Wooster -Cedar Bayou Road, 1194.37 feet to the point of beginning, containing approximately 1.45 acres of land. and (3) Any and all pipe lines and appurtenances and accessories thereto now in place in, or under said 1.45 acre strip of land particularly described in items (2) above, and all other improvements now located on the the premise thereby conveyed and not placed thereon by the Grantee, its agents or contractors; Grantor agrees to remove said other improvements but not said pipe lines and appurtenances and accessories thereto from said premises within a reasonable time after the date hereof. •