HomeMy WebLinkAboutContract 56182 CSC No.56182
MITIGATION CREDIT SALES AGREEMENT
This Mitigation Credit Sales Agreement(the"Agreement") is entered into by and
between Wetlands Management, L.P., a Texas limited partnership ("Wetlands"), and City of Fort
Worth, (the "Purchaser").
RECITALS:
A. This Agreement is entered into pursuant to that certain Mitigation Banking
Instrument Agreement dated April 30, 2008, (the "MBI")between, among others,
Wetlands Management, L.P., a Texas limited partnership ("Wetlands"), as the
sponsor, and the U.S. Army Corp of Engineers ("USACE") which established the
Bunker Sands Mitigation Bank(BSMB)under Permit Number SWF-2004-00420
(the "Bank").
B. Pursuant to the terms of the MBI,Wetlands intends to develop, restore, enhance,
create and preserve wetlands, and open water habitat on certain real property
described in the MBI in exchange for mitigation bank credits authorized by
USACE (the "Credits").
C. The Purchaser is developing certain real property, and in conjunction with such
development,USACE has required that the Purchaser provide off-site wetland
mitigation to compensate for impacts to USACE jurisdictional wetlands.
D. The Purchaser desires to purchase 0.7 credits to satisfy the Purchaser's mitigation
obligation for 0.398 acres of low-quality wetland habitat. The Purchaser's Permit
Number is SWF-2021-00132.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration described in this Agreement,
the receipt and sufficiency of which are hereby acknowledged,the Purchaser and
Wetlands agree as follows:
1. Sale of the Credits. Wetlands hereby agrees to sell and assign, and does hereby
sell, assign, transfer and convey to the Purchaser, and the Purchaser hereby agrees
to purchase and accept, and does hereby purchase, accept, acquire and receive
from Wetlands, 0.7 credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the Purchaser
agrees to pay to Wetlands the sum of Thirty Thousand Eight Hundred Dollars and
00/100 ($30,800.00) for all of the Credits purchased pursuant to this Agreement.
OFFICIAL RECORD
1 CITY SECRETARY
FT. WORTH, TX
3. Representations.
(a) Representations of Wetlands. Wetlands represents to the Purchaser the
following:
(i.) The Credits are free and clear of all liens,pledges, security
interests or other encumbrances other than those imposed by the
MBI;
(ii.) Wetlands has duly taken all action necessary to authorize its
execution and delivery of this Agreement and to authorize the
consummation and performance of the transactions contemplated
by this Agreement;
(iii.) Wetlands shall issue to Purchaser such documentation as is
required by USACE to show the purchase of 0.7 credits was
consummated by Purchaser in accordance with the MBI;
(iv.) this Agreement, and all other agreements executed in connection
with this Agreement, are the legal, valid and binding obligations of
Wetlands, enforceable in accordance with their terms except as
such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of
creditors' rights; and
(v.) Wetlands is operating and will continue to operate the Bank in
accordance with all applicable USACE laws, regulations, orders,
permit requirements, agreements and guidance, including,without
limitation, the MBI and Permit Number SWF-2004-00420.
Other than as expressly set forth above, Wetlands does not make any
representations or warranties to Purchaser, including, without limitation, the
suitability of the Credits or whether or not the Credits will satisfy, in whole or
part, any mitigation obligation of the Purchaser.
(b) Representations of Purchaser. The Purchaser represents to Wetlands the
following:
(i.) The Purchaser has duly taken all action necessary to authorize its
execution and delivery of this Agreement and to authorize the
consummation and performance of the transactions contemplated
by this Agreement; and
(ii.) This Agreement, and all other agreements executed in connection
with this Agreement, are the legal,valid and binding obligations of
the Purchaser, enforceable in accordance with their terms except as
such enforcement may be limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of
creditors' rights.
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Other than as expressly set forth above, Purchaser does not make any
representations or warranties to Wetlands.
4. Confidentiality. The Purchaser shall keep absolutely confidential the existence of
this Agreement, its terms, and all information regarding the MBI, Wetlands,the
Credits and the Bank that the Purchaser learned, was provided or was otherwise
disclosed to Purchaser in connection with the negotiation, execution and
consummation of this Agreement, except for the disclosure of those items that are
already in the public domain,where disclosure is otherwise required by law, or
the disclosure is approved by Wetlands in writing. Wetlands acknowledges that
the Purchaser is subject to the Texas Public Information Act, and that the
Purchaser's confidentiality obligations hereunder are subject and subordinate to
the Purchaser's obligations under that act.
5. Notices. Notices or other communications under this Agreement by either party
to the other shall be given or delivered sufficiently if they are in writing and are
delivered personally, or are dispatched by registered or certified mail, postage
pre-paid, or facsimile, addressed or delivered to the other party as set forth on the
signature pages to this Agreement.
6. Binding_Agreement, Assignment. This Agreement, and its benefits and
obligations, shall inure to and bind the respective heirs, executors, administrators,
successors and assigns of the parties hereto. This Agreement may not be assigned
by Wetlands or the Purchaser without the written consent of the other.
7. Restriction on Recordation. Neither this Agreement nor any notice, memorandum
nor notation thereof shall be recorded or disclosed by Wetlands or the Purchaser
in any public records or in any document made public, except where disclosure is
otherwise required by law.
8. Attorney's Fees. If there is a dispute between the Purchaser and Wetlands under
this Agreement, the prevailing party shall be entitled to recover all costs incurred,
including reasonable attorney's fees,paralegal's fees and appellate and post-
judgment proceedings and all costs thereof.
9. Final Agreement. This Agreement embodies the whole agreement of the
Purchaser and Wetlands. This Agreement shall supersede all previous
communications, discussions,representations, advertisements, proposals or
agreements either verbal or written,between the Purchaser and Wetlands not
otherwise contained in this Agreement.
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10. Captions. The captions in this Agreement are included for convenience only and
shall be given no legal effect whatsoever.
11. Modification. This Agreement may not be modified except by written instrument
executed by both the Purchaser and Wetlands.
12. Choice of Laws: Venue. This Agreement shall be governed by the laws of the
State of Texas, and the venue for all disputes with respect to this Agreement shall
be in Fort Worth, Tarrant County, Texas.
13. Partial Invalidity. Should any part of this Agreement be rendered void, invalid or
unenforceable by any court of law for any reason, such a determination shall not
render void, invalid or unenforceable any other part of this Agreement, provided,
however,that the parties receive the full consideration bargained for hereunder.
14. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, and all of which shall constitute one and the
same agreement.
(the remainder of this page intentionally left blank)
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IN WITNESS WHEREOF, the Purchaser and Wetlands have executed this Agreement
effective for all purposes as of the day of �� ., 2021.
THE PURCHASER: WETLANDS:
CITY OF FORT WORTH,TEXAS WETLANDS MANAGEMENT, L.P
a Texas�Municipality
By: Dana Surghdo Jr 23.20: I L14 c B
Dana Burghdoff John M. *Dskki
Its: Assistant City Manager It President
RECOMMENDED: Address: 2101 Cedar Springs Road
' i, Suite 1600
By: W Johcaor 02114 Scan Dallas, TX 75201
William M. Johnson
Its: Director, Department of Telephone: 214-849-9144
Transportation/Public Works
APPROVED AS TO FORM AND
LEGALITY:
I36909�
By: Mack(Jun 23,202116.07 CDT)
Douglas W. Black
Its: Assistant City Attorney
a� OR
ATTEST: °�?!�� City of Fort Worth Contract Compliance
�} p Manager:
By: �0 00
°o o By signing, I acknowledge that I am the
Mary J. Kayser d'� °O° 0004d person responsible for the monitoring and
Its: City Secretary ����0EX D►ga�p administration of this contract, including
ensuring all performance and reporting
requirements.
Property Management Department ��/ ���
401 West 13 Street i
Fort Worth, Texas 76102 Alejagdra Ayala
Telephone: (817)392-8014 Sr. Project Manager
Fax: (817) 392-8488
OFFICIAL RECORD
5 CITY SECRETARY
FT. WORTH, TX
V
Mill Branch
CREDIT SALES AGREEMENT
This CREDIT SALES AGREEMENT(he inafter referred to as"Agreement")is
made and entered into this day of AIlal�S , 2021 by and between MILL
BRANCH LLC,a Delaware limited liability company(hereinafter referred to as
and the CITY OF FORT WORTH,a Texas Municipality(hereinafter referred to as
"Purchaser").
1. PROJECT NAME: North Riverside Drive
(hereinafter the"Project")
USACE PERMIT NUMBER: SWF-2021-00132
USACE PERMIT TYPE: NWP 14
SERVICE AREA: Mill Branch Secondary
PURCHASER: City of Fort Worth
200 Texas St.
City Hall-2-d Floor
Fort Worth, TX 76102
2. PRICING:
Number of credits purchased: 14.2 Credits
Credit type: 14.2 Intermittent In-Channel credits
Credit price(per unit): $1,400
Total Purchase Price $19,880.00
3. PAYMENT:
3.1 Nonrefundable Payment: MB agrees to accept from Purchaser at the time
of execution of this Agreement a nonrefundable payment in the amount of
Nineteen thousand eight hundred eighty dollars and 00/100($19,880.00),
representing the Total Purchase Price,
3.2 Sale and Transfer: Immediately following MB's receipt of the Total
Purchase Price, 14.2 Credits shall be made available for immediate transfer to
Purchaser by MB. Such transfer shall occur at a time of Purchaser's choosing.No
credits shall be transferred, sold, or otherwise conveyed by MB to Purchaser
pursuant to this Agreement prior to MB's receipt of the Total Purchase Price.
4. DELIVERABLES: See Attached Draft Credit Transaction Notification
5. INFORMATION AND RELIANCE: MB and Purchaser acknowledge and
agree that MB is relying upon information provided solely by Purchaser in providing
compensatory mitigation pursuant to this Agreement. Purchaser shall hold MB harmless
in the event that any such information proves to be inaccurate,false,or otherwise
deficient or in error.
Purchaser warrants that the information provided to MB for the purposes of
determining the nature and amount of compensatory mitigation for the Project is accurate
and complete to the best of Purchaser's knowledge.
MB shall not be liable for inaccuracies or omissions in the calculation or
determination of the amount of compensatory mitigation required for the Project.
6. LIABILITY FOR COMPENSATORY MITIGATION: In consideration for
receiving the Total Purchase Price from Purchaser,MB shall assume liability for
providing compensatory mitigation under the terms of this Agreement and in accordance
with U.S. Army Corps of Engineers Section 404 permit and Texas Commission on
Environmental Quality Section 401 certification requirements,
7. FINAL SALE: The sale of credits by MB to Purchaser pursuant to this
Agreement is final_ Under no circumstances shall Purchaser be entitled to a refund of any
amounts provided to MB for compensatory mitigation for the Project.
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8. COMPLETE AGREEMENT: This Agreement constitutes the full and complete
agreement by and between MB and Purchaser for the sale of compensatory mitigation
credits for the Project.
9. RECEIPT OF TOTAL PURCHASE PRICE: By executing this Agreement the
Parties acknowledge that Purchaser has tendered to MB the Total Purchase Price set forth
in Paragraph 2,above.
10. GOVERNING LAW: This Agreement shall be construed, interpreted, and
enforced under the laws of the State of Texas with the sole proper venue being Tarrant
County, Texas.
11. NONASSIGNABILITY: This Agreement may not be assigned without the
consent,in writing, of the other Party.
12. AGREEMENT BINDING ON SUCCESSORS: This Agreement shad be
binding upon the Parties,their legal representatives,heirs, successors,and assigns to the
fullest extent of prevailing law.
(BY)
J. Adam ggsbee,
Owner and President
Authorized for:
Mill Branch LLC
Date: 7 1,3 `'4
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THE PURCHASER:
CITY OF FORT WORTH, TEXAS
a Texas Municipality
Dam 0W
By: Dona BvghdoM(J 7-� 0Z,7 1:Ja CD7I
Dana Burghdoff
Its: Assistant City Manager
RECOMMENDED:
BV WJa�Ju 1,713!4:!7 COT}
JJ William M. Johnson
Its: Director,Department of
Transportation/Public Works
APPROVED AS TO FORM AND
LEGALITY:
9800r,
By; caar.;J z3.zo� i,u,cor,
Douglas W. Black
Its: Assistant City Attorney
ATTEST: City of Fort Worth Contract Compliance
yQ � Manager:
By: (J 0 c By signing, I acknowledge that I am the
Mary J. Kayser person responsible for the monitoring and
Its: City Secretary administration of this contract, including
ensuring all performance and reporting
requirements.
Property Management Department
401 West 13`h Street
Fort Worth,Texas 76102 Alejadflra Ayala
Telephone: (817) 392-80I4 Sr.Project Manager
Fax: (817) 392-8488
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Mill Branch
8 August 2021
Eric Dephouse Delivered via Email
US Army Corps of Engineers
819 Taylor Street
Room 3A37
Fort Worth,TX 76102
RE: CREDIT TRANSACTION NOTIFICATION for SWF-2021-00132; North Riverside Drive
Dear Mr. Dephouse
Per our Mill Branch Mitigation Banking Instrument (MBI; SWF-2010-00321), we are required to
report all credit sales within thirty (30) days of transaction. This letter serves as notice that a
transaction was concluded on 08 August 2021 with Mill Branch Mitigation Bank covering a portion
of the mitigation requirements under SWF-2021-00132. The Mill Branch RIBITS Ledger will be
debited appropriately within 30 days from the date of this transaction.
The number of credits purchased by the buyer was:
o Fourteen and two tenths (14.2) Intermittent (INT) In-Channel Credits (ICC) to be debited
from the following portions of Mill Branch Mitigation Bank
o MBMB ]CC TXRAM UTMB (INT)-14.2 Credits
Additional specifics regarding the purchaser and other relevant USACE permit information have been
recorded in the Mill Branch Ledger as required under our MBI (Section IV Part 4).
Sincerely,
)";�'4 1/�
J.Adam Riggsbee, PhD
President
Cc: Brent Jasper
Rudi Reinecke
Alejandra Ayala
CREDIT SALES AGREEMENT
This Credit Sales Agreement (the "Agreement") is entered into by and between Trinity
River Mitigation Bank, L.P., a Texas limited partnership ("TRMB"), and City of Fort Worth, a
Texas municipality (the "Purchaser").
RECITALS:
A. Pursuant to that certain Mitigation Banking Instrument Agreement dated April,
2001 (the "MBI") between, among others, Wetland Partners, L.P., a Texas limited partnership
("Wetland Partners"), as the sponsor, West Fork Partners, L.P., a Texas limited partnership
("West Fork") and the U.S. Army Corp of Engineers ("USACE"), Wetland Partners, as Sponsor
of the Bank, and West Fork established the Trinity River Mitigation Bank under Permit Number
199800370 (the "Bank").
B. TRMB is the successor in interest to West Fork's rights under the MBI, although
West Fork remains the owner of the surface of real property subject to the MBI.
C. Pursuant to the terms of the MBI, TRMB and Wetland Partners, as Sponsor of the
Bank, intend to develop, restore, enhance, create and preserve wetlands, open water and riparian
habitat on certain real property described in the MBI in exchange for mitigation bank credits
authorized by USACE (the "Credits").
D. The Purchaser is developing certain real property and in conjunction with such
development, USACE has required that the Purchaser provide off-site wetland mitigation to
compensate for impacts to USACE jurisdictional wetlands.
E. The Purchaser desires to purchase zero and one-tenths (0.1) Credits to satisfy the
Purchaser's mitigation obligation.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration described in this Agreement,
the receipt and sufficiency of which are hereby acknowledged, the Purchaser and TRMB agree
as follows:
1. Sale of the Credits. TRMB hereby agrees to sell and assign, and does hereby
sell, assign, transfer and convey to the Purchaser, and the Purchaser hereby agrees to purchase
and accept, and does hereby purchase, accept, acquire and receive from TRMB, zero and one-
tenths (0.1) Credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the
Purchaser agrees to pay to TRMB the sum of Eighteen Thousand and Five Hundred Eighty Five
Dollars and no cents ($18,585.00) for all of the Credits purchased pursuant to this Agreement.
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3. Representations.
(a) Representations of TRMB. TRMB represents to the Purchaser the
following:
(1) TRMB is a Texas limited partnership, duly formed and validly existing;
(ii) the Credits are free and clear of all liens, pledges, security interests or other
encumbrances other than those imposed by the MBI;
(iii) TRMB has duly taken all action necessary to authorize its execution and delivery
of this Agreement and to authorize the consummation and performance of the transactions
contemplated by this Agreement; and
(iv) this Agreement, and all other agreements executed in connection with this
Agreement, are the legal, valid and binding obligations of TRMB, enforceable in accordance
with their terms except as such enforcement may be limited by bankruptcy, insolvency or similar
laws of general application relating to the enforcement of creditors' rights.
(v) The Bank is operated, and will continue to be operated, in accordance with all
applicable USACE laws, regulations, orders, permit requirements, agreements and guidance,
including, without limitation, the MBI and Permit Number 199800370.
Other than as expressly set forth above, TRMB does not make any representations or
warranties to Purchaser, including, without limitation, the suitability of the Credits or whether or
not the Credits will satisfy, in whole or part, any mitigation obligation of the Purchaser.
(b) Representations of Purchaser. The Purchaser represents to TRMB the
following:
(1) the Purchaser is a municipality in the state of Texas, duly formed and validly
existing;
(ii) the Purchaser has duly taken all action necessary to authorize its execution and
delivery of this Agreement and to authorize the consummation and performance of the
transactions contemplated by this Agreement; and
(iii) this Agreement, and all other agreements executed in connection with this
Agreement, are the legal, valid and binding obligations of the Purchaser, enforceable in
accordance with their terms except as such enforcement may be limited by bankruptcy,
insolvency or similar laws of general application relating to the enforcement of creditors' rights.
Other than as expressly set forth above, Purchaser does not make any representations or
warranties to TRMB.
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4. Confidentiality. The Purchaser shall keep absolutely confidential the
existence of this Agreement, its terms, and all information regarding the MBI, TRMB,
the Credits and the Bank that the Purchaser learned, was provided or was otherwise
disclosed to Purchaser in connection with the negotiation, execution and consummation
of this Agreement, except for the disclosure of those items that are already in the public
domain, where disclosure is otherwise required by law, or the disclosure is approved by
TRMB in writing.
5. Notices. Notices or other communications under this Agreement by either
party to the other shall be given or delivered sufficiently if they are in writing and are
delivered personally, or are dispatched by registered or certified mail, postage pre-paid,
or facsimile, addressed or delivered to the other party as set forth on the signature pages
to this Agreement.
6. Binding Agreement; Assignment. This Agreement, and its benefits and
obligations, shall inure to and bind the respective heirs, executors, administrators,
successors and assigns of the parties hereto. This Agreement may not be assigned by
TRMB or the Purchaser without the written consent of the other.
7. Restriction on Recordation. Neither this Agreement nor any notice,
memorandum nor notation thereof shall be recorded or disclosed by TRMB or the
Purchaser in any public records or in any document made public.
S. Attorney's Fees. If there is a dispute between the Purchaser and TRMB
under this Agreement, the prevailing party shall be entitled to recover all costs incurred,
including reasonable attorney's fees, paralegal's fees and appellate and post judgment
proceedings and all costs thereof.
9. Final Agreement. This Agreement embodies the whole agreement of the
Purchaser and TRMB. This Agreement shall supersede all previous communications,
discussions, representations, advertisements, proposals or agreements either verbal or
written,between the Purchaser and TRMB not otherwise contained in this Agreement.
10. Captions. The captions in this Agreement are included for convenience
only and shall be given no legal effect whatsoever.
11. Modification. This Agreement may not be modified except by written
instrument executed by both the Purchaser and TRMB.
12. Choice of Laws: Venue. This Agreement shall be governed by the laws
of the State of Texas, and the venue for all disputes with respect to this Agreement shall
be in Dallas, Dallas County, Texas.
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13. Partial Invalidity. Should any part of this Agreement be rendered void,
invalid or unenforceable by any court of law for any reason, such a determination shall
not render void, invalid or unenforceable any other part of this Agreement, provided,
however, that the parties receive the full consideration bargained for hereunder.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, and all of which shall constitute
one and the same agreement.
[the rernainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Purchaser and TRMB have executed this
Agreement effective for all purposes as of the 3rd day of August 12021
THE PURCHASER: TRMB:
CITY OF FORT WORTH, TEXAS TRINITY RIVER MITIGATION BANK, L.P.
a Texas Municipality a Texas limited partnership
'nwg LAULWZ� By: Wetland Partners, L.P.
By: DanaBurghdoff(JC23,2021� Its: General Partner
Dana Burghdoff
Its: Assistant City Manager By: WF Investments, Inc.
Its: General Partner
RECOMMENDED:
l LjQL,L- By:
By W-ohmson(JurPl,202114:17CDT) Wallace L. Hall, Jr.
William M. Johnson Its: President
Its: Director, Department of
Transportation/Public Works 5956 Sherry Lane, Suite 1810
Dallas, Texas 75225
APPROVED AS TO FORM AND
LEGALITY: Telephone: (214) 891-0920
Facsimile: (214) 891-9855
Tax ID #: 20-2137693
By: Mack(Jun 23,202116:07 CDT)
Douglas W. Black
Its: Assistant City Attorney
ATTEST:
City of Fort Worth Contract Compliance
By. Manager:
Mary J. Kayser By signing, I acknowledge that I am the
Its: City Secretary person responsible for the monitoring and
administration of this contract, including
M&C: ensuring all performance and reporting
Date: requirements.
Property Management Department
401 West 13' Street
Fort Worth, Texas 76102
Telephone: (817) 392-8014 Aleja ra Ayala
Fax: (817) 392-8488 Sr. Project Manager
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