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
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BROADWAY W.W.T.P.
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i CENSUS TRACTS
INDUSTRIAL AREA ® SITES 1-12
HILLCREST RESIDENTIAL AREAS
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FLINT HILLS PROPERLY (PLANT SITE)
® EXISTING BROADWAY STP SITE
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CHANNEL AND VK:INfTY MAP
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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 ~'