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HomeMy WebLinkAboutC2008-276 - 8/12/2008 - ApprovedAGREEMENT This agreement (the "Agreement") is entered into by and between the Hillcrest Residents Association ("HRA"), a Texas non-profit corporation, acting herein by and through Henry J. Williams, its President, duly authorized hereunto, and the City of Corpus Christi, Texas (the "City"), a municipality of the State of Texas, organized and operating pursuant to its home rule charter and the Constitution and laws of the State of Texas, acting herein by and through George K. Noe, its City Manager, duly authorized hereunto (collectively the "Parties"). WHEREAS, the City desires that cost-effective, environmentally safe, wastewater services be available to its citizens; and WHEREAS, the City owns and operates the Broadway Wastewater Treatment facility ("Broadway"), located at 1402 West Broadway Street in Corpus Christi, on a 16.9 acre tract of land owned by the City; and WHEREAS, Broadway was originally constructed in the 1930s and has been periodically improved; and WHEREAS, Broadway is authorized to discharge wastewater under the laws of the State of Texas by TPDES permit No. 10401-005 and under the laws of the United States by NPDES permit No. TX0047066; and WHEREAS, the City desires to construct a new wastewater facility that will replace Broadway (the "New Plant"); and WHEREAS, the New Plant will be required to be authorized under the laws of the State of Texas, either as a new TPDES permit or an amendment to the existing Broadway permit; and WHEREAS, the City has considered several potential locations for the siting of the New Plant, including on the Property; and WHEREAS, the City believes that the only economically feasible sites for the New Plant are in the area bounded generally by I.H.37 to the south, Nueces Bay Boulevard to the west, the Corpus Christi Ship Channel to the north, and Highway 181 to the East (the "Northside and Industrial Areas"); and WHEREAS, the Northside and Hillcrest neighborhoods are located within that area; and WHEREAS, On April 5, 2007, HRA, representing it's membership within census tracts 4 and 5 as shown on Exhibit A, including the Northside, and Hillcrest neighborhoods, filed identical complaints with both the United States Department of Housing and Urban Development ("HUD") (the "HUD Complaint"), and the Environmental Protection 2008-076 08/12/08 M2008-213 Hillcrest Residents Assn. Agency ("EPA") (the "EPA Complaint") under Title VI of the Civil Rights Act of 1964 and its implementing regulations, alleging discrimination in the siting of the New Plant (collectively, the "Complaints"); and WHEREAS, EPA and HUD have each accepted jurisdiction over the respective Complaints; and WHEREAS, the City believes that the cost of locating the New Plant on the Property would be significantly higher than locating the New Plant on other sites that the City considered and deemed feasible; and WHEREAS, the New Plant may require existing approvals to be amended, and/or may require additional local, city, state, or federal permits and/or approvals; and WHEREAS, whether and to the extent that HRA can prevent the construction of the New Plant in the Northside and Industrial Areas is uncertain; and WHEREAS, how EPA and / or HUD may resolve the Complaints is uncertain; and WHEREAS, the Parties wish to settle their differences regarding the siting of the New Plant and the Complaints; and WHEREAS, it is the intent of the Parties by entering into this agreement that the City commit to locating the New Plant on the Property, and in exchange that HRA withdraw the Complaints and agree to refrain from protesting the New Plant if located on the Property; and WHEREAS, the undersigned have the requisite power to enter into this Agreement and perform the obligations hereunder. NOW THEREFORE, the Parties covenant and agree as follows: 1) Definitions. A. The definitions contained in the foregoing recitals are incorporated herein for all purposes. B. Pro a :That tract of land shown on Exhibit B C, O ose: 1) To file a complaint with any federal or state agency alleging discrimination in the siting, design, or permitting of the New Plant on the Property; 2) To make, send, serve or file oral or written comments, motions or pleadings with the State Office of Administrative Hearings ("SOAH") or the TCEQ which state, suggest or indicate that HRA, its members, or those it represents, oppose an application related to the New Plant on the Property, including where comments are sought by the TCEQ; 3) To orally or in writing, request the EPA, HUD, TCEQ, SOAH, or any other governmental entity or agency, whether local, state, or federal, to deny or restrict an application related to the New Plant on the Property in any way; 4) To seek party status, seek to maintain party status, or participate as a party, in any administrative or judicial proceedings regarding the New Plant on the Property (including proceedings before SOAH, the TCEQ or any appeals to any court at law pertaining to a facility); 5) To appeal the issuance of a permit granted by the TCEQ or any other governmental entity for the New Plant on the Property; 6) Any activity related to any of the foregoing sections 1(B)1 through 1(B)5; ~) To assist, advise or provide financial or technical support to another in any of the foregoing activities identified in sections 1(B)1 through 1(B)5; 8) To join, form, or participate with another, individually or collectively, in any of the foregoing activities identified in sections 1(B)1 through 1(B)5. 9) Oppose shall not include: a) Efforts to enforce the terms of this agreement; b) Requests made to the City for changes to an application for the New Plant. D. TCE :Texas Commission on Environmental Quality or its successor agencies. 2) City's Oblieations: A. The City agrees to seek to design, permit, and construct the New Plant on the Property unless construction or operation of the New Plant becomes impractical or infeasible due to either 1) a change in applicable regulations not currently known or reasonably foreseeable by the City as of the execution of this agreement or 2) geologic or environmental conditions, not currently known or reasonably foreseeable by the City as of the execution of this agreement. The City acknowledges that some increases in the costs of design, permitting, construction and operation of the New Plant on the Property are foreseeable and such increases shall not cause the building of same to be impractical or infeasible. i) Increases in cost that would substantially increase cost of the New Plant no matter where built will generally be considered foreseeable. ii) Increases in cost that would substantially increase the cost of the New Plant only if it were built on the Property will generally be considered unforeseeable. iii) Increases in cost that would substantially increase the cost only if the New Plant were built in the Northside area will be considered foreseeable only if the City has direct knowledge of the cost at the time of the execution of this agreement. iv) Denial of a permit or other permission required by law, by any governmental agency with authority over the New Plant, shall be considered unforeseeable. B. The City agrees to exercise due diligence in seeking authorization to construct and operate the New Plant on the Property in good faith. HRA acknowledges that such authorization must be granted by the TCEQ, and is within TCEQ's sole discretion. C. The City agrees to construct the New Plant on the Property in accordance with the following: i) Demolition of Existing Facilities: the existing facilities located on the Property, other than those used for the New Plant, shall be demolished and replaced with greenspace. HRA acknowledges that the City's master transportation plan calls for a street extension which may curve through the buffer. The master transportation plan is available to HRA for review. ii) Location of New Plant on Property: The New Plant shall be located generally on the north side of the property. HRA acknowledges that construction and demolition will occur outside of this area. iii) Setbacks: No treatment process unit structure shall be located within 150 feet of any property line other than Resaca Street. iv) Odor Control: The New Plant will be constructed with technologically advanced systems to control odor. v) Landscaping: The New Plant will be enclosed by a wall or fencing, at least eight (8) feet tall. Said wall will be opaque on all sides facing residential aeeas, with the exception of gates. Landscaping which includes appropriate trees, shrubbery, and flowering plants, will be planted on the sides facing residential areas. D. Until the construction is completed, the City agrees to make asemi-annual public presentation on the progress of constructing the New Plant on the Property at a regularly scheduled public meeting of the City Council. The first such presentation shall occur within six (6) months of the execution of this Agreement by both Parties. 3) HRA's Obli atg ions A. HRA agrees to file a letter with HUD, formally withdrawing the HUD complaint, within five (5) calendar days of the execution of this Agreement by both Parties. 4 B. HRA agrees to file a letter with EPA, formally withdrawing the EPA complaint, within five (5) calendar days of the execution of this Agreement by both Parties. C. HRA, its members, those it represents, its attorneys, and its agents, agree to not further Oppose the New Plant, so long as the City seeks to locate the New Plant on the Property. 4) General Provisions A. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. B. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each and all of the Parties hereto and their affiliates, successors and assigns. C. Amendments. This Agreement may be amended only by written instrument signed by both Parties. D. Venue and choice of law. THE OBLIGATIONS AND UNDERTAKINGS OF EACH OF THE PARTIES TO THIS AGREEMENT SHALL BE PERFORMABLE AND ENFORCEABLE IN NUECES COUNTY, TEXAS, AND THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. VENUE SHALL BE IN NUECES COUNTY. E. Term. This Agreement shall be effective upon the latest date signed by all the Parties. F. Third Party Beneficiaries. Except for the Parties who are signatories to this Agreement, there is no other person or entity who is intended as a third beneficiary of this Agreement in any way. No third party may rely upon this Agreement, nor may any third party interpret this Agreement or any statement made to it by any Party to this Agreement as confemng any right or benefit to such third party. No third parties are accorded any right to enforce this Agreement or to sue with respect to this Agreement. G. Entire Agreement. This agreement contains the entire agreement of the Parties. There are no other agreements or promises, oral or written, between the Parties regarding the subject matter of this Agreement. H. Neither Party shall be deemed, by any act of omission or commission, to have waived any of its rights or remedies under this Agreement unless such waiver is in writing and signed by the Party. The failure of either Party to exercise any remedy under this Agreement shall not constitute a waiver by the Party of the right to exercise any remedy or option at any other time. IN WITNESS WHEREOF, the City and HRA, each by the signature of their authorized representatives below, have caused this Agreement to be executed in duplicate originals, effective as of the latest of the two dates entered below. HRA THE CITY OF CORPUS CHRISTI, TEXAS / rrrV H iams, President Hillcrest Residents Association Date: JuGy 2~ Za08 eorge K. Noe, City Manager City of Co s hristi, ~'exas Date: ~~~~~~ °20 ~ D' L3 , AUTHUNIZ~ 0Y COUNCIL ....QS.~ ~ ~~ SECRETARY ~~ ATTEST: _ ARMANDO CHAPA -Y+e~. CIiY BECREiAR" 6 EXHIBIT A Census Tracts 4 and 5 5 ' r ~ cr s +~ y '" m- f a ~ a z T,aF ~ ~ ~ ~ ~'- 1 ~. ,.- ~ ~ ., ,. ~.tt ~ ' ~NUECES BAY i _t. ar; e.,•v ,a.: tia t~ x'~.' _. - ~' } s%K~tay e _- .._.1 £ ). I 1 ( ~ ~. ! SITE 3 ~~ l ~ clrGO slTe - _. f SITE 11 4 BROADWAY W.W.T.P. L. ,LEOPARD ~~~- LB®O Z i CENSUS TRACTS INDUSTRIAL AREA ® SITES 1-12 HILLCREST RESIDENTIAL AREAS LL F FLINT HILLS PROPERLY (PLANT SITE) ® EXISTING BROADWAY STP SITE ~ ~ ® CITGO SITE INDUSTRIAL ZONE AROUND SHIP CHANNEL AND VK:INfTY MAP 3 ~~ ,A, EXHIBIT B Property Description BROADWAY WASTEWATER PLANT 1402 W. BROADWAY STREET , CC TEXAS 78401 CITYOF CORPUS CHRISTI CITY COUNCIL EXHIBIT DEPARTMENT OF ENGINEERING SERVICES PAGE: 1 OF 1 DATE: 071022008 ~'