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. s.pr19064 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 • 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. • •