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HomeMy WebLinkAbout2007-IDA-115 SBS Fairmont Parkway,Ltd. D REQUEST FOR CITY COUNCIL AGENDA ITEM Appropriation Agenda Date Reqnested: Jnl(jr9Qr Requested By: Tim Tietiens .... Department: Planninl! Source of Funds: N/A Account Number: N/A Report: _Resolution: _Ordinance: -L Amount Budgeted: N/A Amount Requested: N/A Exhibits: 1. Ord. for Industrial District Agreement 2. Industrial District Agreement 3. Ordinance for Water & Sewer Agreements 4. Water Service Agreement 5. Sanitary Sewer Service Agreement 6. Area Map Budgeted Item: _YES ~NO SUMMARY SBS Fairmont Parkway, Ltd. has approached the City for water and sanitary sewer service to its proposed development, "John Crane, Inc." at 4001 Fair Drive located in Bayport North Industrial Park II of the Bayport Industrial District. This project is to relocate and expand the John Crane facility in Webster, Texas to a new 65,000 square foot facility in La Porte. The company designs and manufactures seals and associated products for the oil & gas, chemical, pharmaceutical, pulp & paper and mining sectors. The company's location in Bayport will consist of sales, service, and repair as well as research and development. The company brings with it 85 new jobs to the La Porte area. Council has approved a policy to provide limited water and sanitary sewer service to companies located within the City's industrial districts. These companies must execute and maintain a current Industrial District Agreement with the City. SBS Fairmont Parkway's site is located within the Bayport North Industrial Park II which is currently covered by IDA No. 2007- I DA-O 17. However, the company will execute a new site- specific IDA for its subject property (Re: 2007-IDA-115). Based on the company's stated demand for domestic water and sanitary sewer needs, its average daily demand will be 4,250 gpd. This amount is well within the policy's maximum limit of 30,000 gallons per day. Under the terms of the policy, the company will pay one and one-half (1-%) times the City's current utility rate. Additionally, SBS Fairmont Parkway is subject to a one-time administrative fee associated with its Water Service Agreement (WSA) and Sanitary Sewer Service Agreement (SSSA). Total payment in the amount of $17,000 ($8,500 per agreement) has been received by the City. The terms of the company's WSA and SSSA will expire on December 31, 2019, plus any renewals and extensions thereof. However, both agreements shall automatically expire at such time as there is no effective IDA between the parties or, if the city exercises the right of termination. ACTION REQUIRED OF COUNCIL ve an ordinance authorizing the City Manager to execute an Industrial District Agreement, a Water Service Agreement, Sanitary Sewer Service Agreement with SBS Fairmont Parkway, Ltd. Ron Bottoms, City Manager ,/6 k , Date ORDINANCE NO. 2007-IDA-115 AN ORDINANCE AUTHORIZING THE EXECUTION BY THE CITY OF LA PORTE OF AN INDUSTRIAL DISTRICT AGREEMENT WITH SBS FAIRMONT PARKWAY, L TO, TEXAS LIMITED PARTNERSHIP FOR THE TERM COMMENCING JANUARY 1, 2008, AND ENDING DECEMBER 31, 2019, MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT, FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW, AND PROVIDING AN EFFECTIVE DATE HEROF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. SBS Fairmont Parkway, L TD Texas Limited Partnership has executed an industrial district agreement with the City of La Porte, for the term commencing January 1, 2008, and ending December 31, 2019, a copy of which is attached hereto, incorporated by reference herein, and made a part hereof for all purposes. Section 2. The Mayor, the Assistant City Manager, the City Secretary, and the City attorney of the City of La Porte, be and they are hereby, authorized and empowered to execute and deliver on behalf of the City of La Porte, the industrial district agreement with the corporation named in Section 1 hereof. Section 3. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the city for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 4. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. 1 PASSED and APPROVED, this day of July 2009. CITY OF LA PORTE ATTEST: Lfn. fJJtiJL ~d Martha Gillett, City Secretary APPROVED: zft:,; trJ6t.; Knox Askins, City Attorney 2 NO. 2007-IDA-jlr:) ~ ~ STATE OF TEXAS ~ ~ COU!r.rY OF ~IS ~ I:BDUSTRIAL DI:STRI:CT AGRBBIIBBT This AGREEMENT made and entered into by and between the CITY OF LA PORTE, TEXAS, a municipal corporation of Barris County, Texas, hereinafter called "CITY", and SBS Fairmont Parkway, Ltd. , a Texas limited partnership corporation, hereinafter called "COMPANY", WIT N E SSE T H: WHEREAS, it is the established policy of the City Council of the City of La Porte, Texas, to adopt such reasonable measures from time to time as are permitted by law and which will tend to enhance the economic stability and growth of the City and its environs by attracting the location of new and the expansion of existing industries therein, and such policy is hereby reaffirmed and adopted by this City Council as being in the best interest of the City and its citizens; and WHEREAS, pursuant to its pOlicy, City has enacted Ordinance No. 729, designating portions of the area located in its extraterritorial jurisdiction as the -Battleground Industrial District of La Porte, Texas", and Ordinance No. 842A, designating portions of the area located in its extraterritorial juriSdiction as the uBayport Industrial District of La Porte, Texas", hereinafter collectively called "District", such Ordinances. being in compliance with the Municipal Annexation Act of Texas, codified as Section 42.044, Texas Local Government Code; and WHEREAS, Company is the owner of land within a designated Industrial District of the City of La Porte, said land being legally described on the attached Exhibit "A" (hereinafter "Land"); and said Land being more particularly shown on a plat attached as Exhibit "B", which plat describes the ownership boundary lines; a site layout, showing all improvements, including pipelines and railroads, and also showing areas of the Land previously annexed by the City of La Porte; and WHEREAS, City desires to encourage the expansion and growth of industrial plants within said Districts and for such purpose desires to enter into this Agreement with Company pursuant to Ordinance adopted by the City Council of said City and recorded in the official minutes of said City: FDT.AL DDI'TI lTovUlber 1, 2007 1 NOW, THEREFORE, in consideration of the premises and the mutual agreements of the parties contained herein and pursuant to the authority granted under the Municipal Annexation Act and the Ordinances of City referred to above, City and Company hereby agree with each other as follows: I. City covenants, agrees and guarantees that during the term of this Agreement, provided below, and subject to the terms and provisions of this Agreement, said District shall continue to retain its extraterritorial status as an industrial district, at least to the extent that the same covers the Land belonging to Company and its assigns, unless and until the status of said Land, or a portion or portions thereof, as an industrial district may be changed pursuant to the terms of this Agreement. Subject to the foregoing and to the later provisions of this Agreement, City does further covenant, agree and guarantee that such industrial district, to the extent that it covers said Land lying within said District and not now within the corporate limits of City, shall be immune from annexation by City during the term hereof (except as hereinafter provided) and shall have no right to have extended to it any services by City, and that all Land, including that which has been heretofore annexed, shall not have extended to it by ordinance any rules and regulations (a) governing plats and subdivisions of land, (b) prescribing any building, electrical, plumbing or inspection code or codes, or (c) attempting to exercise in any manner whatever control over the conduct of business thereon; provided, however, any portion of Land constituting a strip of land 100 I wide and contiguous to either Fairmont Parkway, State Highway 225, or State Highway 146, shall be subject to the rules and regulations attached hereto as Exhibit "C" and made a part hereof; and provided, however, it is agreed that City shall have the right to institute or intervene in any administrative and/or jUdicial proceeding authorized by the Texas Water Code, the Texas Clean Air Act, the Texas Health & Safety Code, or other federal or state environmental laws, rules or regulations, to the same extent and to the same intent and effect as if all Land covered by this Agreement were not subject to the Agreement. II. In the event that any portion of the Land has heretofore been annexed by city, Company agrees to render and pay full City ad valorem taxes on such annexed Land and improvements, and tangible personal property. Under the terms of the Texas Property Tax Code (S.B. 621, Acts of the 65th Texas Legislature, Regular Session, 1979, as amended), 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 Appraisal District has no authority to appraise the Land, improvements, and tangible personal property in the unannexed area for the purpose of computing the "in lieu" 2 payments hereunder. Therefore, the parties agree that the appraisal of the Land, improvements, and tangible personal property in the unannexed area shall be conducted by City, at City's expense, by an independent appraiser of city's selection. The parties recognize that in making such appraisal for "in lieu" payment purposes, such appraiser must of necessity appraise the entire (annexed and unannexed) Land, improvements, and tangible personal property. Nothing herein contained shall ever be interpreted as lessening 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. III. A. The properties upon which the "in lieu of" taxes are assessed are more fully described in subsections 1, 2, and 3 of subsection C, of this Paragraph III (sometimes collectively called the "Property") ; provided I however, poll ution control equipment installed on the Land which is exempt from ad valorem taxation pursuant to the provisions of Sec. 11.31 of the Texas Property Tax Code is exempt from ad valorem taxation and "in lieu of taxes" hereunder. Property included in this Agreement shall not be entitled to an agricultural use exemption for purposes of computing "in lieu of taxesll hereunder. B. On or before the later of December 31, 2008, or 30 days from mailing of tax bill and in like manner on or before each December 31st thereafter, through and including December 31, 2019, Company shall pay to City an amount of "in lieu of taxes" on Company's Property as of January 1st of the current calendar year ("Value Year") . C. Company and City agree that the following percentages ("Percentage Amountll) shall apply during each of the Value Years: Value Year 2008: 62% Value Year 2009: 62% Value Year 2010: 62% Value Year 2011: 62% Value Year 2012: 62% Value Year 2013: 62% Value Year 2014 : 63% Value Year 2015: 63% Value Year 2016: 63% Value Year 2017: 63% Value Year 2018: 63% Value Year 2019: 63% Company taxes" personal of: agrees to pay to City an amount of "in lieu of on Company's land, improvements and tangible property in the unannexed area equal to the sum 3 1. Percentage Amount of the amount of ad valorem taxes which would be payable to City if all of the Company's Land and improvements which existed on January 1, 2008, and each January 1 thereafter of the applicable Value Year during the term of this Agreement, (excluding amounts which would be so payable with respect to any Substantial Increase in value of such Land and improvements to which subparagraph 2, below applies), had been within the corporate limits of City and appraised each year by City's independent appraiser, in accordance with the applicable provisions of the Texas Property Tax Code; and 2. (a) On any Substantial Increase in value of the Land, improvements, and tangible personal property (excluding inventory) dedicated to new construction, in excess of the appraised value of same on January 1, 2007, resulting from new construction (exclusive of construction in progress, which shall be exempt from taxation), for each Value Years following completion of construction in progress, an amount equal to Twenty-five percent (25%), if construction is completed in Value years 2008 through 2013; and Twenty percent (20%), if construction is completed in Value years 2014 through 2019, of the amount of ad valorem taxes which would be payable to City if all of said new construction had been within the corporate limits of City and appraised by City's independent appraiser, in accordance with the applicable provisions of the Texas Property Tax Code. In the case of new construction which is completed in Value Year 2016 or later, and provided, further, that City and Company enter into an Industrial District Agreement after the expiration of this Industrial District Agreement, then, and in such events, such new construction shall be entitled to additional Value Years under the new Agreement at a Twenty percent (20%) valuation under this subparagraph (a), for a total of six (6) Value Years, but not extending beyond Value Year 2022. (b) A Substantial Increase in value of the Land, improvements, and tangible personal property (excluding inventory) as used in subparagraph 2(a) above, is defined as an increase in value that is the lesser of either: i. at least Five percent (5%) of the total appraised value of Land and improvements, on January 1, 2007; or ii. a cumulative value of at least $3,500,000.00. 4 For the purposes of this Agreement, multiple projects that are completed in a Value Year can be cumulated to arrive at the amount for the increase in value. (c) If existing Property values have depreciated below the Property value established on January 1, 2007, an amount equal to the amount of the depreciation will be removed from the calculation under this subparagraph 2 to restore the value to the January 1, 2007, value; and 3 . Percentage Amount of the amount of ad valorem taxes which would be payable to City on all of the Company's tangible personal property of every description, located in an industrial district of City, including, without limitation, inventory, (including inventory in a federal Foreign Trade Zone and including Freeport exempted inventory), oil, gas, and mineral interests, items of leased equipment, railroads, pipelines, and products in storage located on the Land, if all of said tangible personal property which existed on January 1, 2008, and each January 1 thereafter of the applicable Value Year during the term of this Agreement, (excluding amounts which would be so payable with respect to any Substantial Increase in value of such tangible personal property to which subparagraph 2, above applies), had been within the corporate limits of City and appraised each year by the City'S independent appraiser, in accordance with the applicable provisions of the Texas Property Tax Code. with the sum of 1, 2 and 3 reduced by the amount of City's ad valorem taxes on the annexed portion thereof as determined by appraisal by the Harris County Appraisal District. 4. Notwithstanding the above, should City elect to grant the freeport inventory exemption authorized by Article VIII, Section 1-j of the Texas Constitution and Section 11. 251 of the Texas Property Tax Code to taxpayers within the City limits, then the freeport inventory exemption shall apply to parties to this Agreement. Further, should inventory or any other class or type of property become exempt from taxation by constitutional amendment or act of the Texas Legislature (including, but not limited to, Article VIII, Section 1-n, of the Texas Constitution and Section 11.253 of the Texas Property Tax Code), such class or type of property shall be exempt for purposes of this Agreement, unless the City Council of the City of La Porte shall by Ordinance provide for the continued taxation of such property under the authority of any applicable provisions of the Texas Constitution and Texas Statutes. 5 5. City and Company acknowledge circumstances might require the City to provide emergency services to Company's Property described on Bxhibit "An attached hereto. Emergency services are limited to fire, police, and public works emergency services. If Company is not a member of Channel Industries Mutual Aid Association (ClMA), Company agrees to reimburse City for its costs arising out of any emergency response requested by Company to Company's property, and to which City agrees to respond. If Company is a member of ClMA, the obligations of Company and City shall be governed by the ClMA agreement, to which agreement City is a party. IV. This Agreement shall extend for a period beginning on the 1st day of January, 2008, and continuing thereafter until December 31, 2019, unless extended for an additional period or periods of time upon mutual consent of Company and City as provided by the Municipal Annexation Act; provided, however, that in the event this Agreement is not so extended for an additional period or periods of time on or before August 31, 2019, the agreement of City not to annex property of Company within the District shall terminate. In that event, City shall have the right to commence immediate annexation proceedings as to all of Company's property covered by this Agreement, notwithstanding any of the terms and provisions of this Agreement. Company agrees that if the Texas Municipal Act, Section 42.044, Texas Local Government Code, is amended after January 1, 1994, or any new legislation is thereafter enacted by the Legislature of the state of Texas which imposes greater restrictions on the right of City to annex land belonging to Company or imposes further obligations on City in connection therewith after the annexation of such land, Company will waive the right to require City to comply with any such additional restrictions or obligations and the rights of the parties shall be then determined in accordance with the provisions of said Texas Municipal Annexation Act as the same existed January 1, 1994. v. This Agreement may be extended for an additional period or periods by agreement between City and Company and/or its assigns even though it is not extended by agreement between City and all of the owners of all land within the District of which it is a part. VI. A. In the event Company elects to protest the valuation for tax purposes set on its said properties by City or by the Harris County Appraisal District for any year or years during the terms hereof, nothing in this Agreement shall preclude such protest and 6 Company shall have the right to take all legal steps desired by it to reduce the same. Notwithstanding such protest by Company, and except as otherwise provided in Article VI (B), Company agrees to pay to City on or before the date therefor hereinabove provided, at least the total of (a) the total amount of ad valorem taxes on the annexed portions, plus (b) the total amount of the "in lieu of taxes" on the unannexed portions of Company's hereinabove described property which would be due to City in accordance with the foregoing provisions of this Agreement on the basis of renditions which shall be filed by Company. When the City or Harris County Appraisal District (as the case may be) valuation on said property of Company has been so finally determined, either as the result of final judgment of a court of competent jurisdiction or as the result of other final conclusion of the controversy, then within thirty (30) days thereafter Company shall make paYment to City of any additional paYment due hereunder, or City shall make payment to Company of any refund due, as the case may be, based on such final valuation, together with applicable penalties, interests, and costs. B. Should Company disagree with any appraisal made by the independent appraiser selected by City pursuant to Article II above (which shall be given in writing to Company), Company shall, within twenty (20) calendar days of receiving City's invoice, give written notice to the City of such disagreement. In the event Company does not give such written notice of disagreement within such time period, the appraisal made by said independent appraiser shall be final and controlling for purposes of the determination of "in lieu of taxes" paYments to be made under this Agreement. Should Company give such notice of disagreement, Company shall also submit to the City with such notice a written statement setting forth what Company believes to be the market value of Company's hereinabove described property. Both parties agree to thereupon enter into good faith negotiations in an attempt to reach an agreement as to the market value of Company's property for "in lieu" purposes hereunder. If, after the expiration of thirty (30) days from the date the notice of disagreement was received by City, the parties have not reached agreement as to such market value, the parties agree to submit the dispute to final arbitration as provided in subparagraph 1 of this Article VI (B) . Notwithstanding any such disagreement by Company, Company agrees to pay to City on or before December 31 of each year during the term hereof, at least the total of (a) the ad valorem taxes on the annexed portions, plus (b) the total amount of the "in lieu" payments which would be due hereunder on the basis of Company's written valuatione statement submitted to City by Company hereunder, or the total assessment and "in lieu of taxes" thereon for the last preceding year, whichever is higher. 7 1. A Board of Arbitrators shall be created composed of one person named by Company, one by City, and a third to be named by those two. In case of no agreement on this arbitrator in 10 days, the parties will join in a written request that the Chief Judge of the U.S. District Court for the Southern District of Texas appoint the third arbitrator who, (as the "Impartial Arbitrator") shall preside over the arbitration proceeding. The sole issue to be determined in the arbitration shall be resolution of the difference between the parties as to the fair market value of Company's property for calculation of the "in lieu" payment and total payment hereunder for the year in question. The Board shall hear and consider all relevant and material evidence on that issue including expert opinion, and shall render its written decision as promptly as practicable. That decision shall then be final and binding upon the parties, subject only to jUdicial review as may be available under the Texas General Arbitration Act (Chapter 171, "General Arbitration", Texas Civil Practice and Remedies Code). Costs of the arbitration shall be shared equally by the Company and the city, provided that each party shall bear its own attorneys fees. VII. City shall be entitled to a tax lien on Company's above described property, all improvements thereon, and all tangible personal property thereon, in the event of default in payment of "in lieu of taxes" payments hereunder, which shall accrue penalty and interest in like manner as delinquent taxes, and which shall be collectible by City in the same manner as provided by law for delinquent taxes. VIII. This Agreement shall inure to the benefit of and be binding upon City and Company, and upon Company's successors and assigns, affiliates and subsidiaries, and shall remain in force whether Company sells, assigns, or in any other manner disposes of, either voluntarily or by operation of law, all or any part of the property belonging to it within the territory hereinabove described, and the agreements herein contained shall be held to be covenants running with the land owned by Company situated within said territory, for so long as this Agreement or any extension thereof remains in force. Company shall give City written notice within ninety (90) days, with full particulars as to property assigned and identity of assignee, of any disposition of the Land, and assignment of this Agreement. IX. If City enters into an Agreement with any other landowner with respect to an industrial district or enters into a renewal of any 8 existing industrial district agreements after the effective date hereof and while this Agreement is in effect, which contains terms and provisions more favorable to the landowner than those in this Agreement, Company and its assigns shall have the right to amend this Agreement and City agrees to amend same to embrace the more favorable terms of such agreement or renewal agreement. X. The parties agree that this Agreement complies with existing laws pertaining to the subject and that all terms, considerations and conditions set forth herein are lawful, reasonable, appropriate, and not unduly restrictive of Company's business activities. Without such agreement neither party hereto would enter into this Agreement. In the event anyone or more words, phrases, clauses, sentences, paragraphs, sections, articles or other parts of this Agreement or the application. thereof to any person, firm, corporation or circumstances shall be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, then the application, invalidity or unconstitutionality of such words, phrase, clause, sentence, paragraph, section, article or other part of the Agreement shall be deemed to be independent of and separable from the remainder of this Agreement and the validity of the remaining parts of this Agreement shall not be affected thereby. XI. upon the commencement of the term of this Agreement, all other previously existing industrial district agreements with respect to said Land shall terminate. XII. Notices by a party to the other party hereto, shall be mailed or delivered as follows: To the City of La Porte: City Manager City of La Porte 604 West Fairmont Parkway La Porte, TX 77571 To Company: SBS Fairmont Parkway, Ltd. Attention: Rob Bryant 2810 Revere Street Houston, Texas 77098 Company shall promptly notify City of any change of ownership of Property, any assignment of this Agreement, and of any change of billing address. Company shall notify city annually, on or before June 1, of any changes to the following information: 9 Plant Manager Name: Dale Fadner Address: John Crane Inc. 4001 Fair Drive Pasadena, Texas 77507 Phone: Fax: Email: dfadner@iohncrane.com Tax Agent/Billing Contact Name: Same as above Address: Phone: Fax: Email: ENTERED INTO effective the 1st day of January, 2008. SBS Fairmont Parkway, Ltd., a Texas Ii ited partnership By: Robert E. Bryant, r. President of Robert E. Bryant, Jr., Inc., General Partner of SBS Fairmont Parkway, U 2810 Revere Street Houston, Texas 77098 Address: ATTEST: ,I d o!J4- C~ary e P.O. Box 1218 La Porte, TX 77572-1218 281.471.1886 281.471.2047 fax knoxaskins@comcast.net CITY OF LA PORTE 604 West Fairmont Parkway La Porte, TX 77571 10 STATE OF TEXAS 9 9 COUNTY OF HARRIS 9 This instrument was acknowledged before me on the 16th day of June, 2009, by Robert E. Bryant, Jr., President of Robert E. Bryant, Jr., Inc., General Partner ofSBS Fairmont Parkway, Ltd., a Texas limited partnership, on behalf of said entity. 1 instrument was acknowledged before me on the ~ day of , 200~, by ~ :!~' Mayor of the CJ.ty of La municipal corporj'ti n, n P ~eAbalf of said entity. f-!:)6L,,' 1-. ~ ~ Notary PublJ.c, State 0 Texas ~\\\I\\1I111111111i1/1111. ~,~\\\~ N N E F ~/III~ ~ .., ~ ........../~~ ~ :'::' .,,,,.' y '. </\ ~ $ V:J'V.... ~~ P tI .... v % ~ .. o~*#~ '.~ ~ I /z '0\ \ ~:.~ ;>;~ * '. ~I'(:' <~-t:..' ~ ~ " OF \ .0 ;::: ~ .....~~PIRE.~..... $ ~ /0 ....... \" ~ ~ ,'12 1'\('\ ~ :',flllll. < _ ~ V \\\\,~ ~111/1/1'"II1\\\\l1I1I STATE OF TEXAS ~ ~ COUNTY OF HARRIS ~ This JU ''I- Porte a e~!.L': ROBIN R. ELDRIDGE :. ~.... MY COMMISSION EXPIA!8 "':' July 16, 2010 11 -EXHiBiT All (Metes and Bounds Description of Land) 12 TRACT 1 METES & BOUNDS DESCRIPTION 5.9035 ACRES OUT OF RESTRICTED RESERVE "B" BAYPORT NORTH INDUSTRIAL PARK /I HARRIS COUNTY, TEXAS All that certain 5.9035 acres of land being out of Restricted Reserve "B", Bayport North Industrial Park II according to the plat thereof filed at Film Code No. 625094, Harris County Map Records, also being out of that certain called 187.6711 acre tract of land described in a deed dated 12-04-2006 from Tuffli Company, Inc. to Bayport North Industrial Park II, Ltd. filed for record in the Official Public Records of Real Property of Harris County, Texas, at Clerk's File No. 20060239193 being more particularly described by metes and bounds as follows: BEGINNING at a found 5/8" iron rod with cap located in the west end of a 20' cut back line for the east right-of-way line of Fair Drive (60' wide) at its intersection with the south right-of-way line of Fairmont Parkway (250' wide), and being the southerly northwest corner of said Reserve "B"; THENCE N 41050' 09" E - 28.28', with the said cut back line to a found 5/8" iron rod with cap for corner; THENCE N 860 50' 09" E - 447.08', with said south right-of-way line of Fairmont Parkway to a set 5/8" iron rod with cap for corner; THENCE S 01056' 14" E - 591.00' to a set 5/8" iron rod with cap for corner; THENCE S 88003' 46" W - 405.21' to a set 5/8" iron rod with cap marking the said east right-of-way line of Fair Drive; THENCE N 010 56' 14" W - 77.69', with said east right-of-way line to a found 5/8" iron rod with cap marking the Point of Curvature of a curve to the left having a central angle of 190 37' 17", a radius of 530.00' and a chord bearing of N 11044'53" W - 180.62'; THENCE continuing with said curve for an arc distance of 181.50' to a found 5/8" iron rod with cap for a Point of Reverse of a curve to the right having a central angle of 18023' 40", a radius of 470.00' and a chord bearing of N 12021 '41" W - 150.24'; THENCE continuing with said curve for an arc distance of 150.89' to a found 5/8" iron rod with cap marking the Point of Tangency; THENCE N 030 09' 51" W - 157.61', with said east right-of-way line, to the POINT OF BEGINNING and containing 5.9035 acres (257,157 square feet) of land, more or less. Compiled from survey by: PREJEAN & COMPANY, INC. Surveying / Mapping 256-4-14.mb 11-11-2008 Revised: 12-11-2008 REXH:IBIT B" Attach Plat reflecting the ownership boundary lines; a site layout, showing all improvements, including pipelines and railroads, and also showing areas of the Land previously annexed by the City of La Porte.) 13 -EXHIBIT en Page 1 of 3 ROLES AND REGULATIONS Any portion of Land constituting a strip of land 100' wide and contiguous to either Fairmont Parkway, state Highway 225, or State Highway 146 shall pe subject to the following rules and regulations pertaining to new signage, screening, driveways and median crossovers. These rules and regulations shall apply after the effective date of this Agreement when Company develops or constructs improvements on vacant Land described in Exhibit nAn which is adjacent to Fairmont Parkway, State Highway 225, or state Highway 146. 1. Any sign erected in said 100' strip of land shall be subject to the following provisions: · One freestanding identification sign shall be permitted for each side of an industrial establishment that fronts on an improved public right-of-way. · Freestanding identification signs for single tenant buildings shall not exceed 150 square feet in area. · One freestanding identification sign for identifying multiple businesses is allowable at the intersection of improved public rights-of-way. . Freestanding identification signs for businesses shall not exceed 350 square feet. multiple · Freestanding identification signs shall not exceed 45 feet in height. · Minimum setback for sign construction shall be ten (10) feet from property lines. 2. When Land adjacent to said 100' strip is developed, the initial 50' of said strip beyond any existing pipeline easement contiguous to either Fairmont Parkway, State Highway 225, or State Highway 146 shall be screened by one of the fOllowing techniques: a) Leaving in place existing trees, vegetation, underbrush, etc. to provide a thorough and effective visual screening of the development. Existing trees shall, together with other vegetation and underbrush, create a continuous visual screen. 14 nBXHl:Bl:T en Page 2 of 3 b) The use of earthen berms with approximately 3: 1 side slopes, 50 I wide at the base and 8' high. The berms may be landscaped with a combination of trees, shrubs, and ground cover. All berms and landscaping will be maintained by the property owners. c) A screening plan, to be approved by the City, that includes a combination of trees, shrubs, and ground cover that after 5 years growth will be at least 20 feet in height and shall, together with shrubs and ground cover, create a continuous visual screen. Provided, however, in public utility easements or rights-of-way, the vegetation shall be installed and maintained in a manner which is acceptable to the public utility company, and does not interfere with the operation and maintenance of the public utility facilities. For items band c above, the actual length of required screening along the roadway will be equal to the length of the new development that is parallel to the roadway. Screening shall not be required for new development that is to the rear of or behind existing facilities. In all cases the SOl strip, along the entire roadway frontage, shall be dedicated as a landscape easement and shall be kept free from any improvements except for approved driveway access and identification signs. For cases of new development or improvements where a 50' landscape easement is not available or practical, Company shall meet with City to determine a suitable landscaping alternative. d) In the case of land contiguous to Fairmont Parkway, in addition to the other requirements of these Rules and Regulations, Company shall dedicate to City by Plat a ten foot (10 I) wide pedestrian and bicycle easement, extending along Company IS Fairmont Parkway boundary, within the fifty foot (50' ) landscape easement. The pedestrian easement shall not be within any pipeline facility, except for necessary crossings. 3. Driveways opening from said strip of land onto state Highway 225 or State Highway 146 shall be subject to the rules and regulations of the Texas Department of Transportation and provisions of the City'S Code of Ordinances, whichever is more restrictive. Driveways opening from said strip of Parkway shall be subj ect to the rules Harris County and provisions of the Ordinances, whichever is more restrictive. land onto Fairmont and regulations of Cityl s Code of 15 nEXH~B~T C. Page 3 of 3 4. Driveways opening from said strip of land onto Fairmont Parkway shall be approved by the City and may require the installation of separate acceleration/deceleration lanes. 5. Installation of a median crossover on Fairmont Parkway shall be subject to the approval of both Harris County and City. 16 ORDINANCE NO. 2009- ~~ AN ORDINANCE APPROVING AND AUTHORIZING A WATER SERVICE AGREEMENT AND A SANITARY SEWER SERVICE AGREEMENT BETWEEN THE CITY OF LA PORTE AND SBS FAIRMONT PARKWAY, LTD.; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by the reference. The City Secretary is hereby authorized to attest to all such signatures and to affix the seal of the City to all such documents. The City Manager is hereby authorized to execute said contact, agreement, or other undertaking described in the title of this ordinance. Section 2. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subj ect matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 3. This ordinance shall be effective from and after its passage and approval, and it is so ordered. ORDINANCE NO. 2009- 3\50' PASSED AND APPROVED, this \~ ATTEST: "if!!l/f0tJLf1dtl City Secretary APPROVED: ~1/~ Knox W. Askins City Attorney PAGE 2 day of ~, 2009. CITY OF LA PORTE By: 1 STATE OF TEXAS ~ COUNTY OF HARRIS ~ WATER SERVICE AGREEMENT This AGREEMENT made and entered into by and between the CITY OF LA PORTE, TEXAS, a municipal corporation of Harris County, Texas, hereinafter called "CITY", and SBS FAIRMONT PARKWAY, LTD., a Texas Limited Partnership, hereinafter called "COMPANY". I. CaMP ANY is the owner of certain real property, which is situated in CITY'S Bayport Industrial District and not within the corporate limits of the CITY. CITY and CaMP ANY are parties to a current Industrial District Agreement. II. COMPANY is desirous of purchasing potable water from CITY for usual human domestic consumption and uses. Previous planning considerations for the long-range potable water supply of CITY did not include the needs of property located outside the city limits of CITY. CaMP ANY recognizes that CITY cannot at this time provide permanent and unlimited water service. CITY agrees, however, to provide limited potable water service to CaMP ANY. For and in consideration of furnishing domestic potable water by CITY, the parties hereto agree as follows, to-wit: III. CaMP ANY has made certain representations to CITY as to its number of employees, as of the date of this agreement, upon which representations CITY has relied in entering into this Agreement. Upon review ofthese representations, the City has determined the following: 2 Number of Company Employees on site 85 Number of Contract Employees on site o Total on-site Employees 85 Potable Water Approved for Domestic Use Total on-site Employees times 50 gpd per employee) 4,250 Total Amount of Potable Water Approved for Company (Average Daily Demand, gpd) 4,250 IV. CITY has determined that adequate facilities are available for CITY to furnish potable water to COMPANY based on the following terms and conditions, to-wit: (A) Company shall pay to CITY a one-time administrative connection charge of$8,500.00. (B) COMPANY shall file an application for water service with CITY'S Utility Billing Division and pay appropriate deposit and water meter charge. CITY shall be responsible for furnishing and installing meter at Company's expense. COMPANY shall be responsible for installing appropriate meter box to be approved by City. (C) The total amount of potable water approved (average daily demand) is established at Four Thousand Two Hundred Fifty (4,250) gallons per day. This number is based on an average of fifty (50) gallons per employee per day established by CITY. (D) The average monthly demand of One Hundred Twenty Nine Thousand Six Hundred Twenty Five (129,625) gallons is established by multiplying the average daily demand by a factor of 30.5, which shall be used to facilitate service billings. (E) The cost of water up to the average monthly demand of One Hundred Twenty Nine Thousand Six Hundred Twenty Five (129,625) gallons shall be one hundred fifty percent (150%) of the 3 CITY'S rate as established from time to time for commercial customers inside its corporate limits. (F) The cost of water for amounts used in excess of the established average monthly demand shall be two hundred percent (200%) ofthe CITY'S rate as established from time to time for commercial customers inside its corporate limits. (G) Nothing contained in this Agreement shall obligate CITY to furnish more than the average monthly demand of One Hundred Twenty Nine Thousand Six Hundred Twenty Five (129,625) gallons per month. Repeated consumption greater than the established average monthly demand may result in termination of service. (H) CITY shall have the right to interrupt or temporarily suspend said water service to COMPANY if an emergency arises and there is not an adequate water supply to meet the needs of the citizens of La Porte. (I) CITY reserves the right to enforce its drought contingency plan on all water customers at CITY'S sole discretion. (J) The total cost for the engineering design and construction of any potable water main, service line, back flow preventer, meter or other required appurtenances will be the responsibility of COMP ANY. (K) COMPANY agrees that it shall be bound by all applicable ordinances of CITY, relative to the furnishing of potable water to customers within the corporate limits of CITY. (L) All plumbing installed by COMPANY connected to the domestic water line from CITY, shall meet all applicable State of Texas and CITY plumbing code requirements. CITY'S engineering and code enforcement personnel shall have the right of prior review and approval of COMPANY'S plans and specifications for the plumbing system(s). CITY plumbing inspectors shall have the right to inspect any and all work related to the furnishing of potable water to COMP ANY. 4 (M) A reduced pressure zone backflow preventer shall be installed and maintained by COMPANY to protect CITY from any possible cross-connections. (N) The potable water supply system will be segregated from any existing and future COMPANY fire protection system. (O)There shall be no resale of the water provided by CITY, nor any extension of service lines by COMPANY to serve other parties. (P) COMPANY shall submit a certified site plan showing the total acreage of the tract including present and proposed improvements and a suitable location map of the site. COMPANY'S development may be subject to certain additional requirements as described in Exhibit "A", attached. These requirements shall be shown on the site plan and approved by CITY. (Q)CITY does not guarantee its water system will provide specific water pressure and/or water volume requirements of COMPANY. (R) COMPANY is responsible for design of adequate and appropriate systems for fire suppression systems to its facilities. V. All expenses associated with installation of the meter; service lines from the main to the meter; and from the meter to COMPANY'S facilities, shall be solely at the expense ofCOMP ANY. COMPANY shall own and maintain all service lines and plumbing facilities beyond the meter. 5 CITY shall own the meter. VI. CITY shall retain ownership and maintenance responsibility for its water meter(s). In the event a State or Harris County license, permit, or permission to install the water main is revoked, or relocation or adjustment is required, CITY will not be responsible for the expense of such relocation, adjustment, or replacement. VII. CITY reserves the right of ingress and egress at all reasonable times for the purpose of reading, maintenance, installation, removal and/or relocation of its water meter(s) and for inspection of COMPANY'S water facilities in order to observe compliance with the terms and conditions of this Agreement. When exercising its right of entry, CITY shall notify COMPANY in advance. CITY also agrees to follow established health and safety policies in effect at COMPANY'S facility. VIII. CITY reserves the right to terminate this agreement in the event of violation ofthe terms and provisions hereof by COMPANY. CITY will provide COMPANY with written notice of any defects and COMPANY shall have the opportunity to cure any defects. Failure to correct defects within ten (10) days may result in termination of Agreement. CITY shall have the right to summarily correct, at COMPANY'S expense, any defect or deficiency, when in its opinion the integrity of the public water supply is threatened. IX. Upon receipt of written notice of termination, COMPANY shall have up to six (6) months to prepare for transition to another water supply. If the transition is not complete within said six-month period, CITY shall have the right to terminate water service at its sole discretion. X. In the event of any conflict between the terms and prOVlSlons of this Water Service 6 Agreement and the terms and provisions of the Industrial District Agreement between the parties, the terms and provisions of the Water Service Agreement shall control, to the extent of such conflict. The term of this Agreement shall terminate on December 31,2019. However, this Agreement shall automatically expire at such time as there is no effective Industrial District Agreement between the parties or if CITY exercises its right oftermination. ENTERED INTO and effective the 1&1'-- day of (f V.Jy , 2009 SBS FAIRMONT PARKWAY, LTD., a Texas limited partnership ~ Signature: , Name: President of Robert E. Bryant, Jr., Inc., Title: General Partner of SBS Fairmont Parkway, Ltd. Address: J,e,/tJ ~bve ~~~/7k ?7t:>7fJ CITY OF LA PORTE ATTEST: ~~ Q.(4UsJJJ Martha A Gillett ::...~..s-:.:: _ j c~ . iJ ~ Knox W. Askins City Attorney 7 Ron Bottoms City Manager City Attorney PO Box 1218 La Porte, TX 77572-1218 City of La Porte 604 West Fairmont Parkway La Porte, TX 77571 Phone: (281) 471-1886 Fax: (281) 471-2047 Phone: (281) 471-5020 Fax: (281) 471-7168 8 This is EXHIBIT A, consisting of 1 page, referred to in and part of the Water Service Agreement and/or Sanitary Sewer Service Agreement between CITY and COMPANY Dated~ CITy@7 ADDITIONAL REQUIREMENTS COMPANY f:iJ The Agreement is amended and supplemented to include the following agreement of the parties. CaMP ANY shall provide additional improvements as specifically set forth below. These agreements represent contractual undertakings of COMPANY, undertaken to induce CITY to sell water to COMPANY pursuant to the terms of the Water Service Agreement and/or Sanitary Sewer Service Agreement and this addendum. Said additional improvements undertaken by COMPANY are an integral part ofthe consideration by COMPANY for obtaining the provision of water and/or sanitary sewer service from CITY. 1) STORM WATER PLAN: For new development COMPANY shall provide a Storm Water Management Plan that is approved by Harris County Flood Control District and CITY. COMPANY shall construct and maintain any storm water system as a condition of continued water and/or sewer service. 2) BEAUTIFICATION EFFORTS: COMPANY shall submit a Landscaping Plan subject to approval by CITY. COMPANY shall install and maintain landscaping along its existing developed frontage as per approved Landscaping Plan as a condition of continued water service. 1 STATE OF TEXAS ~ COUNTY OF HARRIS ~ SANITARY SEWER SERVICE AGREEMENT This AGREEMENT made and entered into by and between the CITY OF LA PORTE, TEXAS, a municipal corporation of Harris County, Texas, hereinafter called "CITY", and SBS FAIRMONT PARKWAY, LTD., a Texas Limited Partnership, hereinafter called "COMPANY". I. COMPANY is the owner of certain real property, which is situated in CITY'S Bayport Industrial District and not within the corporate limits of the CITY. CITY and COMPANY are parties to a current Industrial District Agreement. II. COMPANY is desirous of purchasing sanitary sewer service from CITY for usual human domestic uses. COMPANY recognizes that CITY cannot at this time provide permanent and unlimited sanitary sewer service. CITY agrees, however, to provide limited sanitary sewer service to COMPANY. For and in consideration offumishing sanitary sewer service by CITY, the parties hereto agree as follows, to-wit: III. COMPANY has made certain representations to CITY as to its number of employees, as of the date of this agreement, upon which representations CITY has relied in entering into this Agreement. 2 Upon review of these representations, the City has determined the following. Number of Employees on-site 85 Number of Contract Employees o Total on-site Employees 85 Sanitary Sewer Desired for Domestic Use (Total on-site times 50 gpd per employee) 4,250 Total Amount of Sanitary Sewer Approved by Company (Average Daily Demand, gpd) 4,250 IV. CITY has determined that adequate facilities are available to allow CITY to furnish sanitary sewer to COMPANY based on the following terms and conditions, to-wit: (A). Company shall pay to CITY a one-time administrative connection charge of$8,500.00 (B). COMPANY shall file an application for sanitary sewer service with CITY'S Utility Billing Division and pay appropriate deposit. (C). The average daily demand is established at Four Thousand Two Hundred Fifty (4,250) gallons per day. This number is based on an average of fifty (50) gallons per employee per day established by CITY. (D). The average monthly demand is calculated to be eighty-five percent (85%) of the average daily demand multiplied by a factor of30.5, which shall be used to facilitate service billings. (E). The cost of sanitary sewer service up to the average monthly demand of One Hundred Ten Thousand One Hundred Eighty One (110,181) gallons shall be one hundred fifty percent (150%) of the CITY'S rate as established from time to time for commercial customers inside its corporate limits. 3 (F). The cost of sanitary sewer service for amounts in excess of the established average monthly demand shall be two hundred percent (200%) of the CITY'S rate as established from time to time for commercial customers inside its corporate limits. (G). Nothing contained in this Agreement shall obligate CITY to furnish more than the average monthly demand of One Hundred Ten Thousand One Hundred Eighty One (110,181) gallons. Repeated sanitary sewer delivery greater than the established average monthly demand may result in termination of service. (H). COMPANY agrees that during periods when the CITY'S collection system is surcharged, the CITY may require the suspension of use of the sanitary sewer system for periods not to exceed thirty-six hours. (I). CITY shall have the right to interrupt or temporarily suspend said sanitary sewer service to COMPANY if an emergency arises and there is not an adequate sewer collection or treatment capacity to meet the needs of the citizens of La Porte. (J). COMPANY agrees that it shall be bound by CITY'S Industrial Waste Ordinance (Chapter 74, Article II of the Code of Ordinances) and any subsequent amendments or revisions. (K). The total cost for the engineering design and construction of any sanitary sewer main, service line, lift station, meter or other required appurtenances will be the responsibility of COMPANY. (L). COMPANY agrees that it shall be bound by all applicable ordinances of CITY, relative to the furnishing of sanitary sewer service to customers within the corporate limits of CITY. (M). All plumbing installed by COMPANY connected to the sanitary sewer line from CITY, shall meet all applicable State of Texas and CITY plumbing code requirements. CITY'S engineering and code enforcement personnel shall have the right of prior review and approval of COMPANY'S plans and specifications for the plumbing system(s). CITY plumbing 4 inspectors shall have the right to inspect any and all work related to the furnishing of sanitary sewer service to COMPANY. (N). There shall be no resale of the sanitary sewer service provided by CITY, nor any extension of service lines by COMPANY to serve other parties. (0). COMPANY shall submit a certified site plan showing the total acreage of the tract including present and proposed improvements and a suitable location map of the site. Company's development project may be subject to certain additional requirements as described in Exhibit "A", attached. These requirements shall be shown on the site plan and approved by City. V. All expenses of the installation of service lines from the main to the CO MP ANY'S facilities shall be solely at the expense of COMP ANY. COMPANY shall own and maintain all service lines and plumbing facilities. VI. In the event a State or Harris County license, permit, or permission to install the sanitary sewer main is revoked, or relocation or adjustment is required, CITY will not be responsible for the expense of such relocation, adjustment, or replacement. VII. CITY reserves the right of entry at all reasonable times for the purpose of inspection of COMPANY'S sanitary sewer facilities, and to observe compliance with the terms and conditions of this Agreement. When exercising its right of entry, CITY shall notifY COMPANY in advance. CITY also agrees to follow established health and safety policies in effect at COMPANY'S facility. VIII. CITY reserves the right to terminate this agreement in the event of violation ofthe terms and provisions hereof by COMPANY. CITY will provide COMPANY with written notice of any defects and COMPANY shall have the opportunity to cure any defects. Failure to correct defects within ten (10) days may result in termination of Agreement. CITY shall have the right to summarily correct, at COMPANY'S expense, any defect or deficiency, when in its opinion the 5 integrity of the public sanitary sewer system is threatened. IX. Upon receipt of written notice of termination, COMPANY shall have up to six (6) months to prepare for transition to another sanitary sewer service provider. If the transition is not complete within said six-month period, CITY shall have the right to terminate sanitary sewer service at its sole discretion. x. In the event of any conflict between the terms and provisions of this Sanitary Sewer Service Agreement and the terms and provisions of the Industrial District Agreement between the parties, the terms and provisions of the Sanitary Sewer Service Agreement shall control, to the extent of such conflict. The term of this Agreement shall terminate on December 31, 2019. However, this Agreement shall automatically expire at such time as there is no effective Industrial District Agreement between the parties or if CITY exercises its right oftermination. ENTERED INTO effective the ~ day of J (,t '1 .2009. SBS FAIRMONT PARKWAY, LTD., a Texas limited partnership Signature: Name: President of Robert E. Bryant, Jr., Inc., Title: General Partner of SBS Fairmont Parkway, Ltd. Address: 7i'IP 12weA-.t sf. ~ ~~/ i7 77c.,.e 6 CITY OF LA PORTE ATTEST: CITY OF LA PORTE APPROVED: / , t2?t# ttldf1~ Knox W. Askins . City Attorney ~; J,/kI M a A. G1l1ett City Secretary 7 This is EXHIBIT A, consisting of I page, referred to in and part of the Water Service Agreement and/or Sanitary Sewer Service Agreement between CITY and COMPANY Dated 1/ B,1 01 COMPANY f2Ib ADDITIONAL REQUIREMENTS The Agreement is amended and supplemented to include the following agreement of the parties. COMPANY shall provide additional improvements as specifically set forth below. These agreements represent contractual undertakings of COMPANY, undertaken to induce CITY to sell water and/or sanitary sewer to COMPANY pursuant to the terms of the Water Service Agreement and/or Sanitary Sewer Service Agreement and this addendum. Said additional improvements undertaken by COMPANY are an integral part of the consideration by CaMP ANY for obtaining the provision of water and/or sanitary sewer service from CITY. 1) STORM WATER PLAN: For new development COMPANY shall provide a Storm Water Management Plan that is approved by Harris County Flood Control District and CITY. COMPANY shall construct and maintain any storm water system as a condition of continued water and/or sewer service. 2) BEAUTIFICATION EFFORTS: COMPANY shall submit a Landscaping Plan subject to approval by CITY. CaMP ANY shall install and maintain landscaping along its existing developed frontage as per approved Landscaping Plan as a condition of continued water service. 3) SAMPLING WELL: COMPANY shall install a sanitary sewer sampling well in accordance with CITY's standards. 4) INDUSTRIAL WASTE PERMIT: COMPANY shall submit application to CITY for industrial waste permit.