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HomeMy WebLinkAboutRES 06-207 RESOLUTION NO. 06-207 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager is hereby authorized to execute an industrial district contract with 850 Pine Street, Inc., a Delaware Corporation substantially in the form attached hereto as Exhibit "A." PASSED BY THE CITY COUNCIL of the City of Beaum nt this the 18th day of July, 2006. X Mayor Guy N. Goodson - Oft r THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and 850 Pine Street, Inc., a Delaware Corporation, its parent, subsidiaries and affiliates, hereinafter called "COMPANY." PREAMBLE WHEREAS, the City has established an industrial district comprising a certain part of the extraterritorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, Company owns land and/or improvements within the City of Beaumont Industrial District which are a part of the manufacturing, industrial, and refining facilities of said Company. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City by reason of being located immediately adjacent to said City and benefits derived by the Company by reason of being located within the Industrial District. G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 1 / 8 EXHIBIT "A" In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: ARTICLE I. COMPANY'S OBLIGATION A. Annual Payment. Commencing with the calendar year 2007 and each calendar year thereafter for the duration of this Agreement, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this Agreement (herein referred to as the "Properties"). B. By the term "Assessed Value" is meant the 100% valuation of the properties, as determined by the Jefferson County Appraisal District for ad valorem tax purposes. C. The term"Assumed City Taxes Due"shall be calculated by the following formula: Assessed Value divided by 100 x the current ad valorem tax rate adopted by City Council of City = Assumed City Taxes due. D. Payment Procedures (1) The payments for 2007and 2008 shall be in the amount of$10,000 each year and shall be due and payable on or before February 1, 2007 and February 1, 2008 respectively. (2) For the years 2009 through 2015, the payment shall be based upon a calculation of Assumed City Taxes as shown in C. above. G:\CGWGREEMEN\CB&I.wpd-6-06.wpd 2 /8 If the Assessed Values of the Properties for a tax year are in question and/or under litigation with the Jefferson County Appraisal District, payment shall be computed on the most recent certified Assessed Values of the Properties by the Jefferson County Appraisal District. The Company shall notify the City following resolution of the Assessed Value question and an adjustment for the payment,without interest,will be made within thirty(30) days following such resolution. After the Assessed Value of the Company's Properties have been determined, the annual payment due shall be made in accordance with the following schedule: The 2009 through 2011 annual payments shall be forty percent (40%) of Assumed City Taxes Due. The 2012 through 2015 annual payments shall be seventy-five (75%) of Assumed City Taxes Due. (3) City hereby agrees to bill Company for annual payments due hereunder on or before January 1 each year. Company shall pay such amount to City on or before February 1 each year. Upon receiving the annual payment due, the Finance Officer of the City shall issue an official receipt of said City acknowledging full, timely, final and complete payment due by said Company to City for the Properties involved in this Agreement for the year for which such payment is made. If payment is not made on or before any 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. Further, if payment is not timely made, all payments which otherwise would have been paid to the City had Company been in the city limits of City will be recaptured and paid to the City within sixty (60) days of any such event. G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 3 /8 ARTICLE II. PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the Properties of Company (facilities, real, personal, and mixed) located on Company's real property as determined by the Jefferson County Appraisal District which are within the extra-territorial jurisdiction of the City of Beaumont. ARTICLE III. SALE BY COMPANY Company shall notify City of any sale of any or all of Company's Property, including facilities, to any person or entity, if the value of such property substantially affects the current assessed value of the property as set forth by the Jefferson County Appraisal District. As to payments due under this Agreement no such sale shall reduce the amount due the City under this Agreement until the purchaser of such Property has entered into an Agreement in lieu of taxes with the City that provides for a continuation of payments to the City as if no such sale had been made. It is the intent of the parties that no sale of any of Company's Properties will affect the amount to be paid to the City under this Agreement. ARTICLE IV. CITY'S OBLIGATIONS A. City agrees that it will not annex, attempt to annex or in anyway cause or permit to be annexed any portion of lands or facilities or Properties of said Company covered by this Agreement for the period of the Agreement except as follows: (1) If the City determines that annexation of all or any part of the Properties covered by this Agreement belonging to said Company is reasonably necessary to promote G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 4/ 8 and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation becomes effective if the annexation becomes effective after January 1st of said year. (2) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall, with the approval of Company, seek immediate legal relief against any such attempted annexation or incorporation and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne equally by the City and by the said Company or Companies with the Company's portion allocated on the basis of Assessed Values. B. The City further agrees that during the term of this Agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont Industrial District, any rules, regulations, or any other actions: (a)seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct of Company's activities, facilities or personnel thereof. C. It is understood and agreed that during the term of this Agreement or any renewals thereof, the City shall not be required to furnish any municipal services to G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 5 / 8 Company's Properties located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. ARTICLE V. TERMINATION OR BREACH 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, 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 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. ARTICLE VI. AFFILIATES The benefits accruing to Company under this Agreement shall also extend to Company's"affiliates"and to any Properties owned or acquired by said affiliates within the area owned by Company, and where reference is made herein to the Properties owned by Company, that shall also include land, property and improvements owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Company directly or indirectly, through one or more intermediaries at the time in question, G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 6 /8 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. ARTICLE VII. TERM OF AGREEMENT The term of this Agreement shall be for nine (9) years, commencing July 1, 2006, and ending on December 31, 2015. ARTICLE VIII. CONTRACT REOPENERS Either party, by giving written notice to the other party a minimum of one hundred twenty (120) days prior to the end of the 7th year of this contract may reopen for negotiation any portion or all of this agreement for the years 2014 and 2015. ARTICLE IX. NOTICES Any notice provided for in this Agreement, or which may otherwise be required by law, shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY City Manager 850 Pine Street, Inc. City of Beaumont 5410 Gorman Road 801 Main Beaumont, TX 77705 P. O. Box 3827 Beaumont, Texas 77704 ATTN: Lee A. Murphy, Vice-President If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. G:\CG\AGREEMEN\CB&I.wpd-6-06.wpd 7 /8 IN WITNESS THEREOF, this Agreement, consisting of 9 pages, is executed in duplicate counterparts as of this day of , 2006. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Rose Ann Jones City Clerk 850 Pine Street, Inc., a Delaware Corporation By: WITNESS: G:\CG\AGREEMEN\CB&f.wpd-6-06.wpd 8 / 8 Page 1 of 4 l".. 688 S.W.2d 182 Page 1 688 S.W.2d 182 (Cite as: 688 S.W.2d 182) P Vernon's Ann.Texas Civ.St. arts. 1175, 1175, subd. 6; Vernon's Ann.Texas Const.Art. 11, § 5. Court of Appeals of Texas,Beaumont. Deborah Kay FITTS,Appellant, 121 Municipal Corporations 268 X741.10 V. The CITY OF BEAUMONT,Texas,Appellee. 268 Municipal Corporations No.09 83 223 CV. 268XII Torts 268XII(A) Exercise of Governmental and Feb.21, 1985. Corporate Powers in General Rehearing Denied March 21, 1985. 268k741 Notice or Presentation of Claims for Injury Action was filed against city, alleging that injured 268041.10 k. In General. Most Cited person had been injured in fall on city's property. Cases The 58th District Court, Jefferson County, Ronald (Formerly 268k741.1(1)) L. Walker, J., entered summary judgment in favor City charter provision requiring written notice of of city, and injured person appealed. The Court of injury of damage within 60 days after sustaining Appeals, Burgess, J., held that city charter provision injury violated "open courts" provision of requiring written notice of injury of damage within Constitution, which prohibits unreasonable 60 days after sustaining injury violated "open courts limitation provisions, as selection of 60 days as "provision of Constitution. notice period, without any good cause exception, was arbitrary. Vernon's Ann.Texas Const. Art. 1, § Reversed and remanded. 13. West Headnotes 131 Municipal Corporations 268 X723 111 Municipal Corporations 268 x'741.10 268 Municipal Corporations 268XII Torts 268 Municipal Corporations 268XII(A) Exercise of Governmental and 268XII Torts Corporate Powers in General 268XII(A) Exercise of Governmental and 268k723 k. Nature and Grounds of Corporate Powers in General Liability. Most Cited Cases 268k741 Notice or Presentation of Claims Sovereign immunity does not create arbitrary and for Injury unlawful distinction between governmental and 268041.10 k. In General. Most Cited nongovernmental tort-feasors. Cases (Formerly 268k741.1(1)) Provision in city charter requiring written notice of *182 Kenneth W. Lewis, Cribbs & Lewis, injury of damage within 60 days after sustaining Beaumont, for appellant. injury did not violate constitutional provision Robert A. Black, Mehaffy, Weber, Keith & requiring that city charter provisions not be in Gonsoulin,Beaumont,for appellee. conflict with Constitution or general laws enacted by legislature, despite contention that charter OPINION provision shortened or abrogated general two-year BURGESS,Justice. statute of limitations in personal injury cases. This is a summary judgment case involving a " ©2006 Thomson/West.No Claim to Orig.U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7b6D3D047A-B5C6-4F05-932F-B69F033F 1674... 7/17/2006 Page 2 of 4 688 S.W.2d 182 Page 2 688 S.W.2d 182 (Cite as: 688 S.W.2d 182) notice of claim" provision in a city *183 charter. injury occurred and the extent thereof, and the Deborah Kay Fitts filed suit against the City of names and addresses of any person or persons, if Beaumont, Texas alleging she had been injured in a any witnessing same, if such names and addresses fall on the city's property. The fall, she alleged, can be ascertained by reasonable diligence. No was a result of a hole in the roadway which officer or employee of the City shall have authority constituted a dangerous condition. The city to waive any of the provisions of this section as to answered stating Ms. Fitts had not given notice of notice, but same may be waived only by a her injuries within the sixty day period required by resolution of the City Council, made and passed the city charter.FN1 All the requisite dates were before the expiration of the period herein provided, uncontroverted or admitted by both parties. The and evidenced by the minutes of the City Council. City of Beaumont filed a motion for summary (Charter 1947,art. 17 sec. 15)." judgment based upon the admitted non-compliance with the city charter provision. Ms. Fitts responded and attempted to avoid summary judgment by The statutory authority for the city's notice alleging there was a fact issue concerning her good requirement, it being a home-rule city, is derived cause for giving late notice. Summary judgment from TEX.REV.CIV.STAT.ANN. art. 1175 (Vernon was granted and appeal was perfected to this court. 1963 and Vernon Supp.1985). Paragraph 6 of this article is the source of the city's authority to place limitations upon actions against the city for FN 1. Answers to Interrogatories indicate damages arising from proprietary wrongs. the notice to the city was given 66 calendar Artco-Bell Corp. v. City of Temple, 616 S.W.2d 190 days after the injury. (Tex.1981). This statutory authority is derived from TEX. CONST. art. XI, sec. 5. This article, Ms.Fitts alleges three points of error: however, recognizes the right of the legislature to Number one: "The trial court erred in granting prescribe limitations for home-rule cities and Defendant's motion for summary judgment because requires that city charter provisions not be in the notice provision in the City Charter of conflict with the constitution of the state or the Beaumont violates the Texas and United States general laws enacted by the legislature. Constitutions." Number two: "The trial court erred in granting [1] Ms. Fitts alleges, in her first point of error, that Defendant's motion for summary judgment because Sec. 21 of the Beaumont City Charter is in violation sovereign immunity creates an arbitrary and of Art. XI, sec. 5 of the Texas Constitution in that unlawful distinction between governmental and the charter section shortens or abrogates the general non-governmental tortfeasors." two-year statute of limitations in personal injury Number three: "The trial court erred in granting cases. This argument has long been answered by Defendant's motion for summary judgment because the general premise authorizing "notice of claim" genuine issues of material fact existed which provisions. The purpose of these requirements, as precluded summary judgment." recognized by the Texas Supreme Court, is to ensure a prompt reporting of claims to enable the municipality to investigate while facts are fresh and The Charter of the City of Beaumont contains the conditions remain substantially the same. Such following provision: opportunity to investigate, *184 predicated upon "Sec.21. Written notice of injury of damage. timely reporting of claim of injury, enables the city Before the City of Beaumont shall be liable for to gather the information needed guard against personal injuries of any kind, the person injured or unfounded claim, settle claims and prepare for trial. someone in his behalf shall give the City Council City of Houston v. Torres, 621 S.W.2d 588, 591 notice in writing of such injury within sixty (60) (Tex.1981). The claim of unconstitutionality under days after the same has been sustained, stating Art. XI, sec. 5 of the Texas Constitution cannot be specifically in such notice when, where and how the sustained. ©2006 Thomson/West.No Claim to Orig. U.S.Govt. Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7b6D3D047A-B5C6-4F05-932F-B69F033F 1674... 7/17/2006 Page 3 of 4 688 S.W.2d 182 Page 3 688 S.W.2d 182 (Cite as: 688 S.W.2d 182) Ms. Fitts next attacks the city charter provision as amount to a denial of justice,they are void.' " being violative of TEX. CONST. art. I, sec. 13 or the "open courts" provision. In reviewing previous Texas Supreme cases on city charter provisions, a This brings us almost full circle only to discover much cited case is City of Waco v. Landingham, that the question of a time period limitation in " 138 Tex. 156, 157 S.W.2d 631 (1941). Here, notice of injury" charter provisions being in Landingham argued the city charter provision was violation of the "open courts" provision of the unconstitutional under Art. I, sec. 13 of the Texas Texas Constitution is yet unanswered. A recent Constitution and the fourteenth amendment to the discussion of the "open courts" provision by our United States Constitution because it was Supreme Court is Sax v. Votteler, 648 S.W.2d 661 unreasonable and discriminatory, in that it was not (Tex.1983). Admittedly, this is not a city charter possible to give it a fair and impartial application in case. The court here, declared the limitations all instances. The court held the charter provision provisions of TEX.INS.CODE ANN. art. 5.82, sec. 4 could not be held unconstitutional merely because it (Vernon 1981) (repealed) to be in violation of Art. could not be given universal application. McCrary I, sec. 13, as it applied to minors. The discussion v. City of Odessa, 482 S.W.2d 151 (Tex.1972) of Art. 1, sec. 13 and its requirements are established the "minority" exception to notice enlightening and we think, controlling. Basically, provisions on the grounds of Art. I, sec. 13. Justice Kilgarlin, speaking for the entire court, tells Brantley v. City of Dallas, 498 S.W.2d 452 us to weigh the legislative basis for the respective (Tex.Civ.App.-Eastland 1973, writ refd n.r.e.), cert. ordinance against the extent to which a litigant's denied, 415 U.S. 983 (1974) raised the question of right to redress is affected. A more recent and the validity of notice provisions under the more celebrated case is Nelson v. Krusen, 678 fourteenth amendment to the United States S.W.2d 918 (Tex.1984). Here, the same statute as Constitution and the court held no fourteenth in Sax v. Votteler, supra, was declared amendment violation existed. City of Houston v. unconstitutional in violation of Art. 1, sec. 13, Torres, supra, was not an Art. I, sec. 13 attack on a because the legislature established an absolute city charter, but sought to carve a "good cause" limitation period as opposed to an "accrual" exception based on the party's "belief that his limitation period. Thus, in following Sax v. injuries were trivial." The court refused to carve Votteler, supra, the Supreme Court reaffirmed the such an exception. Artco-Bell Corp. v. City of proposition that the "open courts" provision of the Temple, supra, struck down the requirement that a Texas Constitution prohibits unreasonable notice of injury claim be verified. The decision limitation provisions. turned, not on a constitutional question, but, on the theory that the requirement was unreasonable under [2] Turning to the charter provision in question, we TEX.REV.CIV.STAT.ANN. art. 1175, para. 6 must analyze it in accordance *185 with Sax v. (Vernon 1963). Hanks v. City of Port Arthur, 121 Votteler, supra, and Nelson v. Krusen, supra. The Tex. 202, 48 S.W.2d 944 (1932) was an early case general legislative basis for "notice of injury" which found a city "notice of defect" provision provisions, as stated in City of Houston v. Torres, unconstitutional under Art. I, sec. 13 because the supra, is logical and reasonable. But does a 60 day charter provision was unreasonable and violated period, without any good cause exception, affect a due process. In Hanks, supra, 48 S.W.2d at 949, litigant's right to redress? Obviously it does. The our Texas Supreme Court quoted from the Supreme selection of 60 days as the notice period can be Court of Washington: nothing but arbitrary. The legislature, in the "Tort " `... Charter provisions of the character in Claims Act" established six months as the time limit question, whether enacted by the legislature, or, as within which notice must be given under that act. in the present case, by the city itself, are to be TEX.REV.CIV.STAT.ANN. art. 6252-19 sec. 16 upheld only so far as they are reasonable and tend (Vernon Supp.1985). While not conclusive, as a to the due administration of justice. When such reasonable time limitation, this six month provisions so far depart from reasonableness as to requirement is certainly persuasive. ©2006 Thomson/West.No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7b6D3D047A-B5C6-4F05-932F-B69F033F 1674... 7/17/2006 Page 4 of 4 688 S.W.2d 182 Page 4 688 S.W.2d 182 (Cite as: 688 S.W.2d 182) We therefore hold the city charter provision in question violates the "open courts" provision and can not stand. Point of error number one is sustained. [3] We have considered point of error number two and find it without merit and it is accordingly overruled. Having disposed of the case in the manner indicated, point of error number three need not be decided. While the trial judge cannot and should not be faulted for following the law as it stood prior to this opinion, the judgment of the trial court is reversed and the cause remanded. REVERSED AND REMANDED. Tex.App. 9 Dist.,1985. Fitts v. City of Beaumont 688 S.W.2d 182 END OF DOCUMENT ©2006 Thomson/West.No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?utid=%7b6D3D047A-B5C6-4F05-932F-B69F033F 1674... 7/17/2006