HomeMy WebLinkAboutPR 19064: KEEP TEXAS/PORT ARTHUR BEAUTIFUL P.R. NO. 19064
10/07/15 gt
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE A
CONSERVATION EASEMENT TO "KEEP TEXAS/PORT ARTHUR
BEAUTIFUL, INC.", IN ORDER TO PRESERVE A 1. 03 ACRE TRACT
OF LAND BEING LOTS A THROUGH F, BLOCK R 17, RESERVATION
FOR PARK PURPOSES
WHEREAS, per Ordinance No. 15-19, the City Council approved
the designation of a 1 . 03 acre tract of land as a public park and
garden in response to a proposal by Valero to fund such a park and
garden using Supplemental Environmental Project (SEP) monies; and
WHEREAS, as part of the SEP approval at the Texas Commission
on Environmental Quality (TCEQ) requested that a conservation
easement be applied to the property in order to assure that it is
permanently used as a park; and
WHEREAS, Valero is therefore requesting that the City grant
such an easement to "Keep Texas/Port Arthur Beautiful, Inc. "; and
WHEREAS, Valero is committed to implementing this project with
the help and guidance of neighborhood organizations, churches and
interested individuals, as well as the City Council and Mayor
Prince; and
WHEREAS, Valero appreciates the City' s belief in this project,
and they believe that once the conservation easement is granted,
TCEQ will be able to sign the SEP agreement allowing the project to
go forward.
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NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PORT ARTHUR:
Section 1 . That the facts and opinions in the preamble are
true and correct.
Section 2 . That City Council hereby authorizes the City
Manager to execute a Conservation Easement to "Keep Texas/Port
Arthur Beautiful, Inc. ", in substantially the same form as attached
hereto as Exhibit "A" .
Section 3 . That a copy of the caption of this Resolution
shall be spread upon the Minutes of the City Council .
READ, ADOPTED, AND APPROVED, this day of
2015 AD, at a Regular Meeting of the City Council of the City of
Port Arthur, Texas by the following vote : AYES :
Mayor:
Councilmembers :
NOES :
Mayor
ATTEST:
Sherri Bellard, City Secretary
s.pr19064
APPROVED AS TO FORM:
rot)
Valecia R. Tit5eno, City Attorney
APPROVED FOR ADMINISTRATION:
Brian McDougal, City Manager
s.pr19064
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EXHIBIT "A"
S
4111
s.pr19064
• This CONSERVATION EASEMENT made this day of September, 2015.
RECITALS:
A. THE CITY OF PORT ARTHUR, TEXAS, (the Grantor) is the owner in fee simple of certain real
property, (the Protected Property) that is appropriate for use and preservation as a
neighborhood park, green space or garden, and as such may have ecological, scientific,
educational and aesthetic value. The Protected Property is located in Jefferson County,
Texas and is more particularly described in Exhibit A and Exhibit B attached. KEEP TEXAS/
PORT ARTHUR BEAUTIFUL, INC. (the Grantee) is a non-profit corporation incorporated under
the laws of the State of Texas as a tax exempt public charity under Section 501(c)(3)) and
509(a)(1) of the Internal Revenue Code, qualified under section 170(h) of the Internal
Revenue Code to receive qualified conservation contributions, and having an address at
, and whose purposes include, inter alia, preservation of areas for
scientific, charitable, educational and aesthetic purposes.
B. The Protected Property is appropriate for use as a park, green space or garden, and as such
will provide ecological and aesthetic benefits to Port Arthur and its residents, including air
and water quality improvement, improved drainage, improved landscaping, as well as the
social and cultural benefits attendant to a park and garden.
C. The specific conservation values of the Property are documented in the West Port Arthur
SCommunity Park Proposal submitted by Valero, L.P. to the Grantor on March 27, 2015.
D. Grantor and Grantee have the common purpose of conserving the above-described
conservation values of the Protected Property in perpetuity, and the State of Texas has
authorized the creation of Conservation Easements pursuant to Chapter 183 of the Texas
Natural Resource Code and Grantor and Grantee wish to avail themselves of the provisions
of that law.
THEREFORE, the Grantor, for and in consideration of the facts recited above and of the mutual
covenants, terms, conditions and restrictions contained herein and as an absolute and
unconditional gift, hereby gives, grants, bargains, sells and conveys unto the Grantee a
Conservation Easement in Perpetuity over the Protected Property of the nature and character as
follows:
1. Purpose. The Purpose of this Conservation Easement is to ensure that the Protected Property
will be developed and retained forever predominantly as a park, garden or green space; and to
prevent any use of the Protected Property that will significantly impair or interfere with the
conservation values or interests of the Protected Property described above, the Grantor intends
that this Conservation Easement will restrict the use of the Protected Property to only such
activities as are consistent with the purpose of this Conservation Easement.
• 2. Prohibited Uses. Any activity on or use of the Protected Property inconsistent with the
purpose of this Conservation Easement is prohibited. Without limiting the generality of the
• foregoing, the following activities and uses are expressly prohibited, except as provided in
Section 3 below:
2.1 Construction and Excavation. Except as provided in Section 3, there shall be no
constructing or placing of any building, fence or sign (other than those required by the Grantee
for appropriate management), billboard or other advertising display, antenna, utility pole, tower,
conduit, line, light or any other temporary or permanent structure or facility on or above the
Protected Property. Any ditching, draining, diking, filling, excavating, dredging, removal or
replacement of topsoil, sand, gravel, rock, minerals or other materials, or any building of
additional paths or change in the topography or surface and subsurface hydrology of the
Protected Property shall be consistent with the park, garden or green space purpose or as may be
necessary to restore, maintain, or enhance the hydrologic regime of the watershed as provided in
Section 3.7.
2.2 Cutting. Any removal, destruction or cutting of trees, shrubs or plants, planting of trees,
shrubs or plants, use of fertilizers, plowing, or disturbance of the Protected Property shall be
consistent with the park, garden or green space purpose of the Protected Property. Grantee
agrees to allow some Grantor removal of vegetation in areas deemed by Grantee to facilitate the
park and garden purpose and to allow visual enjoyment of the Protected Property.
2.2 No Dumping. Except for any composting operation undertaken in support of the Protected
• Property's park and garden purpose, there shall be no storage or dumping of ashes, trash,
garbage, or other unsightly or offensive material, hazardous substance, or toxic waste, nor any
placement of underground storage tanks in, on, or under the Protected Property; there shall be no
changing of the topography through the placing of soil or other substance or material such as
landfill or dredging spoils, nor shall activities be conducted on the Protected Property or on
adjacent property, if owned by the Grantor, that could cause erosion or siltation on the Protected
Property.
2.3 No Pollution. There shall be no pollution of surface water, or subsurface water or any
other water bodies, nor shall activities be conducted on the Protected Property that would be
detrimental to water purity or that could alter the natural water level or flow in, over, or under the
Protected Property, except as may be agreed to by Grantor and Grantee or otherwise provided
herein.
2.4 Subdivision. The Protected Property may not be divided,partitioned, or subdivided.
3. Grantor's Reserved Rights. The Grantor hereby reserves the following rights:
3.1 Existing Uses. The right to undertake or continue any activity or use of the Protected
Property not prohibited by this Conservation Easement, including use as a community garden,
play area for children, community gathering space, or similar use. Prior to making any change in
• use of the Protected Property, the Grantor shall notify the Grantee in writing to allow the Grantee
•
a reasonable opportunity to determine whether such change would violate the terms of this
Conservation Easement.
3.2 Transfer. The right to sell, give, mortgage, lease, or otherwise convey the Protected
Property, provided such conveyance is subject to the terms of this Conservation Easement.
3.3 Structures. The right to construct and maintain such structures and fences as needed to
serve the park, garden or green space purpose of the Protected Property (including the right to
replace, but not expand, on the same site, with like structures used for the same or similar
purposes). Specifically, Grantor retains the right to construct, maintain, or replace a multi-use
pavilion and appurtenant equipment for the purposes of rainwater collection, storage and
distribution; solar power and battery storage; storage of tools and equipment used for the
management and maintenance of the park and any garden on the property; office space for
management of any community garden operated on the facility, and sanitary facilities. Grantor
may construct and establish utilities, paths, lighting, security, fencing, a compost facility, and
incidental equipment and landscaping on the Protected Property in association with such
uses. Facilities for rainwater collection, storage and distribution and water, wastewater and
electrical utilities access may be underground as well as above ground. All improvements shall
be arranged in such a manner as to cause the least disturbance to the conservation values of the
Protected Property.
3.4 Tree and Shrub Removal. The right to cut, trench, remove or replace trees, shrubs, or
plants as necessary to effect the park, garden or green space purpose.
3.6 Community Garden. The right to construct and operate a community garden located on
the Protected Property, including garden beds, paths, fruit-bearing trees, landscaping and other
features consistent with the community garden purpose.
3.7 Restoration and Improvement. The right to construct swales, rain gardens, biofiltering or
other grading or structures to improve storm water management and water quality; and to restore
damage caused by natural disasters such as flood or hurricane, to replace or amend soil and to
restore soil levels and contours and replace shrubs and trees lost to natural disaster with like
species.
4. Grantee's Rights. To accomplish the purpose of this Conservation Easement, the
following rights are conveyed to the Grantee by this Conservation Easement:
4.1 Right to Protect. The right to preserve and protect the conservation values of the Protected
Property.
4.2 Right of Entry. The right to enter the Protected Property at all reasonable times during
normal business hours, but excluding weekends, and with prior notice for the purposes of: (a)
• inspecting the Protected Property to determine if the Grantor is complying with the covenants
and purposes of this Conservation Easement; (b) enforcing the terms of this Conservation
• Easement; (c) taking any and all actions with respect to the Protected Property as may be
necessary or appropriate, with or without order of court, to remedy or abate violations hereof;
and (d) monitoring and management as described below. Grantee may notify Grantor of
multiple visits with one notice.
4.3 Monitoring and Management. The right, but not the obligation, to monitor the condition
and use of the Protected Property, and to manage or support the management of them, to the
extent deemed appropriate by the Grantee and in coordination with Grantor, to ensure the
continued viability of the use of the Protected Property for park, garden or green space
purposes. If a dispute arises out of or related to the reasonableness of Grantor's non-approval,
and if said dispute cannot be settled through direct discussions, the parties agree to first endeavor
to settle the dispute in an amicable manner by mediation under the Commercial Mediation Rules
of the American Arbitration Association, before resorting to arbitration.. Thereafter, any
unresolved controversy shall be settled by arbitration in accordance with Commercial Arbitration
Rules of the American Arbitration Association, and judgment upon the decision tendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof. Such management and
monitoring activities shall be in accordance with management practices of the Grantee, but
which may not include mowing, fencing, and trapping, or prescribed burning.
4.4 Enforcement. The right to prevent any activity on or use of the Protected Property that is
inconsistent with the purpose of this Conservation Easement and to require the restoration of
• such areas or features of the Protected Property that may be damaged by any inconsistent activity
or use,pursuant to Section 10 below.
4.5 Discretionary Consent. The Grantee's consent for activities otherwise prohibited under
Section 2 above, or for any activities requiring Grantee's consent under Section 3 above, may be
given under the following conditions and circumstances. If, owing to unforeseen or changed
circumstances, any of the activities listed in Section 2 are deemed desirable by both the Grantor
and the Grantee, the Grantee may, in its sole discretion, give permission for such activities,
subject to the limitations herein. Such requests for permission, and permission for activities
requiring the Grantee's consent under Section 3, shall be in writing and shall describe the
proposed activity in sufficient detail to allow the Grantee to judge the consistency of the
proposed activity with the purpose of this Conservation Easement. The Grantee may give its
permission only if it determines, in its sole discretion, that such activities (1) do not violate the
purpose of this Conservation Easement and (2) either enhance or do not impair any significant
conservation interests associated with the Protected Property
5. Access. Nothing contained in this Conservation Easement shall give or grant to the public
or any person or persons, other than the Grantee and its agents and employees, any additional
right to enter upon or to use the Protected Property or any portion thereof.
6. Costs and Liabilities. The Grantor retains all responsibilities and shall bear all costs and
• liabilities of any kind related to the ownership, operation, upkeep and maintenance of the
1111 Protected Property, including the maintenance of comprehensive general liability insurance
coverage. The Grantor shall keep the Grantee's interest in the Protected Property free of any
mechanics liens arising out of any work performed for, materials furnished to or obligations
incurred by the Grantor. Grantee shall maintain its own general liability insurance coverage.
Each party agrees to release, hold harmless, defend and indemnify the other from any and all
liabilities including, but not limited to, injury, losses, damages, judgments, costs, expenses and
fees that the indemnified party may suffer or incur as a result of or arising out of the activities of
the other party on the Protected Property.
7. Taxes. In the event of a sale of the property, the Grantor's assignees will be responsible
for payment of any real estate taxes or other assessments levied on the Protected Property. If the
Grantor's assignees become delinquent in payment of taxes or assessments, so that a lien is
created against the Protected Property, the Grantee, at its option, shall, after written notice to the
Grantor's assignees, have the right to pay such taxes or assessments and any interest and
penalties thereon to discharge the lien. Thereafter, Grantee may make written demand on
Grantor's assignees for full reimbursement of all sums expended by Grantee, including
reasonable attorneys' fees, resulting from the failure to pay such taxes or assessments. In the
event that Grantor's assignees fail to pay Grantee such sums within thirty (30) days of the giving
of such written notice by Grantee, Grantee shall have the right to purchase and acquire the
interest of the Grantor's assignees in the Protected Property in consideration of its having paid
IPthe funds required to discharge the lien or delinquent taxes or assessments. Grantee shall also
have the right to take such other actions as may be necessary to protect the Grantee's interest in
the Protected Property and to assure the continued enforceability of this Conservation Easement.
8. Title. The Grantor covenants and represents that the Grantor is the sole owner and is seized
of the Protected Property in fee simple and has good right to grant and convey this Conservation
Easement; that the Protected Property is free and clear of any and all encumbrances except the
permitted encumbrances specified in Exhibit C attached hereto, and that the Grantee shall have
the use of and enjoy all of the benefits derived from and arising out of this Conservation
Easement.
9. Hazardous Waste. To the best of Grantor's knowledge, Grantor covenants, represents and
warrants to the Grantee that no hazardous substance or toxic waste exists nor has been generated,
treated, stored, used, disposed of, or deposited in or on the Protected Property, and that there are
not now any underground storage tanks located on the Protected Property. Grantee, however,
has not conducted any studies, searches, or detailed inspections of the Protected Property
regarding hazardous substances,toxic waste, or underground tanks.
10. Grantee's Remedies. If the Grantee becomes aware of a violation of the terms of this
Conservation Easement, the Grantee shall give notice to the Grantor, at the Grantor's last known
address, of such violation via certified mail, return receipt requested, and request corrective
action sufficient to abate such violation and restore the Protected Property to its previous
• condition at the time of this grant. Failure by the Grantor to abate the violation and take such
other corrective action as may be requested by the Grantee within thirty (30) days after receipt of
such notice shall entitle the Grantee to bring an action at law or equity in a court of competent
jurisdiction to enforce the terms of this Conservation Easement; to require the restoration of the
property to its previous condition; to enjoin the non-compliance by ex parte, temporary or
permanent injunction in a court of competent jurisdictions, and/or to recover any actual damages
arising from the noncompliance (punitive, compensatory, and/or consequential damages shall in
no event be sought or recovered). Such damages, when recovered, must be applied by the
Grantee to corrective action on the Protected Property. If the court determines that the Grantor
has failed to comply with this Conservation Easement, the Grantor shall reimburse the Grantee
for any reasonable costs of enforcement, including costs of restoration, court costs and
reasonable attorneys' fees.
10.1 Emergency Enforcement. If the Grantee, in its reasonable discretion, determines that
circumstances require immediate action to prevent or mitigate significant damage to the
conservation values of the Property, the Grantee may pursue its remedies under this Section with
prior notice to the Grantor by personal communication, telephone, or pursuant to Section 17.6
herein,but without waiting for the period for cure to expire.
10.2 Failure to Act or Delay. The Grantee does not waive or forfeit the right to take action as
may be necessary to insure compliance with this Conservation Easement by any prior failure to
act and the Grantor hereby waives any defenses of waiver, estoppel or laches with respect to any
failure to act or delay by the Grantee, its successors or assigns, in acting to enforce any
restriction or exercise any rights under this Conservation Easement.
10.3 Violations Due to Causes Beyond Grantor's Control. Nothing herein shall be construed to
entitle the Grantee to institute any enforcement proceedings against the Grantor for any changes
to the Protected Property due to causes beyond the Grantor's control, such as changes caused by
fire, flood, storm, earthquake or the unauthorized wrongful acts of third persons. In the event of
violations of this Conservation Easement caused by the unauthorized wrongful acts of third
persons, the Grantor agrees, upon request by the Grantee to join in any suit, or at the election of
the Grantor to appoint the Grantee its attorney-in-fact for the purposes of pursuing enforcement
action.
11. Parties Subject to Easement. The covenants agreed to and the terms, conditions, and
restrictions imposed by this grant shall not only be binding upon the Grantor but also its lessees,
agents, personal representatives, successors and assigns, and all other successors to Grantor in
interest and shall continue as a servitude running in perpetuity with the Protected Property.
12. Subsequent Transfers. The Grantor agrees that the terms, conditions, restrictions and
purposes of this grant or reference thereto will be inserted by the Grantor in any subsequent deed
or other legal instrument by which the Grantor divests either the fee simple title or possessory
interest in the Protected Property. In the event that Grantor intends to sell the Protected Property,
•
111 Grantor shall give Grantee written notice not less than fifteen (15) days prior to the sale of the
Protected Property, such notice to include the name, address and telephone number of the
purchaser of the Protected Property.
13. Assignment. The parties hereto recognize the benefits of this easement are in gross and
assignable. Any assignment shall be to a qualified organization as that term is defined in Section
170(h)(3) of the Internal Revenue Code of 1986, that is organized and operated primarily for one
of the conservation purposes specified in Section 170(h)(3) of the Internal Revenue Code and
committed to hold the easement solely for the conservation purposes that the contribution was
originally intended to advance. However, an assignee of Grantee or any subsequent holder of this
easement shall not assign its rights and obligations under this Agreement, except by approval of
Grantor, which will not be unreasonably withheld. If a dispute arises out of or related to the
reasonableness of Grantor's non-approval, and if said dispute cannot be settled through direct
discussions, the Grantor and Grantee agree to follow similar procedure as described in Section
4.3 above as it relates to mediation and arbitration procedures.
14. Extinguishment. The Grantor agrees that, at the time of the conveyance of this
Conservation Easement to the Grantee, this Conservation Easement gives rise to a real property
right, immediately vested in the Grantee, with a fair market value of the Conservation Easement
as of the date of the conveyance that is at least equal to the proportionate value that this
Conservation Easement at the time of the conveyance bears to the fair market value of the
property as a whole at that time.
The proportionate value of the Grantee's property rights shall remain constant. If a change in
conditions takes place which makes impossible or impractical any continued protection of the
Protected Property for conservation purposes, and the restrictions contained herein are
extinguished by judicial proceeding, the Grantee, upon a subsequent sale, shall be entitled to a
portion of the proceeds at least equal to that proportionate value of the Conservation
Easement. The Grantee shall use its share of the proceeds in a manner consistent with the
conservation purposes set forth herein or for the protection of a"relatively natural habitat of fish,
wildlife, or plants or similar ecosystem", as that phrase is used in and defined under P.L. 96-541,
26 USC 170(h)(4)(A)(ii), as amended and in regulations promulgated thereunder.
15. Eminent Domain. Whenever all or part of the Protected Property is taken in exercise of
eminent domain by public, corporate, or other authority so as to abrogate the restrictions imposed
by this Conservation Easement, the Grantor and the Grantee shall join in appropriate actions at
the time of the taking to recover the full value of the taking and all incidental or direct damages
resulting from it, and the proceeds shall be divided in accordance with the proportionate value of
the Grantee's and Grantor's interests, and Grantee's proceeds shall be used as specified
above. All expenses incurred by the Grantor and the Grantee in such action shall be paid out of
the recovered proceeds.
16. Miscellaneous Provisions.
16.1 Severability. If any provision of this Conservation Easement or the application thereof to
any person or circumstance is found to be invalid, the remainder of the provisions of this
Conservation Easement and the application of such provisions to persons or circumstances other
than those as to which it is found to be invalid shall not be affected thereby.
16.2 Successors and Assigns. This Conservation Easement shall be binding upon and inure to
the benefit of Grantor and Grantee and their heirs, executors, administrators, successors and
assigns. The term Grantor shall also mean the masculine, feminine, corporate, singular or plural
form of the word as needed in the context or its use. The term Grantee shall include KEEP
TEXAS PORT ARTHUR BEAUTIFUL,INC.and its successors and assigns.
16.3 Re-recording. The Grantee is authorized to record or file any notices or instruments
appropriate to assuring the perpetual enforceability of this Conservation Easement; for such
purpose, the Grantor appoints the Grantee its attorney-in-fact to execute, acknowledge and
deliver any necessary instrument on its behalf. Without limiting the foregoing, the Grantor
agrees to execute any such instruments upon request.
16.4 Captions. The captions herein have been inserted solely for convenience of reference and
are not a part or this Conservation Easement and shall have no effect upon construction or
interpretation.
• 16.5 Counterparts. The parties may execute this instrument in two or more counterparts,which
shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced,the recorded counterpart shall be controlling.
16.6 Notices. Any notices required in this Conservation Easement shall be sent by registered
or certified mail to the following address or such address as may be hereafter specified by notice
in writing:
Grantor: CITY OF PORT ARTHUR
ATTENTION:
Port Arthur, Texas
Grantee: KEEP TEXAS/PORT ARTHUR BEAUTIFUL,INC.
• TO HAVE AND TO HOLD the said Conservation Easement unto the said Grantee forever.
IN WITNESS WHEREOF, the Grantor has executed and sealed this document the day and year
first above written.
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