On September 27, 2016, the Ordinance on the provisions regarding the reopening of the oil refinery, aka the ‘CITGO Ordinance’ (the Ordinance) was accepted by the Aruban Parliament.
The Ordinance contains primarily further actions to be undertaken following the negotiations between Country Aruba (Aruba) and the owner of CITGO Petroleum Corporation, Petroleos de Venezuela SA (PDVSA) (http://www.pdvsa.com) regarding the exploitation of the former Valero refinery in Aruba that resulted in the conclusion of the Definitive Participation Agreement (DPA) in Caracas, Venezuela on June 10, 2016. According to a news statement released, on the basis of the DPA ‘CITGO will invest in the refinery and Aruba will foster a positive environment for foreign investment’.
CITGO will exploit the refinery through its subsidiaries CITGO Aruba Refinery NV, CITGO Aruba Terminal NV and CITGO Aruba Marine Operations NV.
Below, the content of the Ordinance is outlined and summarized.
i). The establishment of ‘Refineria di Aruba NV’
a. Article 1 of the Ordinance determines that ‘Refineria di Aruba (RDA) NV’ will be established. Aruba will own 100% of the shares in RDA NV by bringing in the following:
- the economic ownership of immoveable assets (installations and buildings) used for the exploitation of the refinery and the terminal.
- the containerships used in connection with the marine operations of the refinery and the terminal.
- movable (business) assets used in connection with the exploitation of the refinery and the terminal.
- the shares of Aruba in Valero Marketing & Supply-Aruba NV.
b. RDA NV will hold the following rights:
- the long lease rights (erfpachtrechten) on the refinery and terminal premises, totaling 34 parcels.
- the right of superficies (opstalrecht) on the installations and buildings.
- the ownership of the business assets (bedrijfsmiddelen).
c. RDA NV will act as lessor in two separate lease agreements with CITGO (see below):
In the light hereof, Aruba will vest the long lease rights on the premises on behalf of RDA NV (Article 7 Ordinance).
ii) The conclusion of two separate lease agreements
On the basis of Article 3 of the Ordinance, RDA NV will conclude a Refinery Lease Agreement with CITGO Aruba Refining Company NV., as well as a Terminal Lease Agreement with CITGO Aruba Terminal NV. The lease agreements will be signed for 15 years with a10-year option to extend.
For the duration of the first three years, the monthly lease will amount to AWG 18,000,000. Thereafter, the lease will amount to AWG 33,300,000. As of the second year, the lease price will be adjusted for inflation to a percentage as determined by the Central Bureau of Statistics CBS with a maximum of 8%.
iii) The conclusion of a mediation agreement between Aruba and CITGO
Article 4 of the Ordinance stipulates that Aruba and CITGO will resolve disputes by means of mediation. Aruba (and RDA NV) will enter into a mediation agreement with PDV Holding Inc., CITGO Aruba Holding LLC., CITGO Aruba Refining NV, CITGO Aruba Terminal NV, CITGO Aruba Marine NV and CITGO Aruba Supply NV.
iv) The conclusion of a settlement agreement between Aruba and Valero
Article 5 and 6 of the Ordinance prescribe that Aruba furthermore enters into settlement agreements with Valero Refining Company Aruba NV, Valero Aruba Holding Company NV, Valero Aruba Maintenance/Operations Company NV and Valero Coker Corporation Aruba NV, regarding the termination of the exploitation and use by Valero of the refinery (premises). On August 31, 2016, Aruba and Valero concluded a ‘Transfer and Master Settlement Agreement’. The aim is for Aruba to acquire the full ownership of the refinery and to bring potential current and future disputes with Valero to an end.
CITGO will be exempt from:
Belasting op bedrijfsomzetten (BBO) (Article 8 Ordinance);
Bestemmingsheffing Algemene Ziektekosten Verzekering (BAZV) (Article 12 Ordinance);
Import and excise duties (the exemption of excise duties only applies to fuel which is used in relation to the refinery and the shipping terminal (Article 10 and 11 Ordinance).
Reduced and regressive Corporate Income Tax (CIT):
For CIT purposes CITGO will be taxed at the reduced rate of 7% (if CITGO Aruba is directly or indirectly fully owned by a company listed on the stock exchange), or 10% (in all other cases) over profits up to and including AWG 180,000,000, with a minimum of AWG 18,000,000. Profits exceeding AWG 180,000,000, will be taxed at a rate of 6% CIT (Article 9 Ordinance), thereby basically creating a regressive CIT.