HomeMy WebLinkAboutContract 47808 CITY SECRETAW
EECEWED ,, CONTRACT NO.
MmOFFMN
Y PURCHASE AND SALE AGREEMENT FOR MITIGATION CREDITS
BIG WOODS ON THE TRINITY MITIGATION BANK
This Purchase and Sale Agreement for Mitigation Credits(this"Agreement") is entered into as of
, 2016 (the "Effective Date") between Mitigation Management, Ltd., a Texas
limited partnership, ("Seller") and The City of Fort Worth ("Buyer"), collectively referred to
herein as the"Parties,"with reference to the following:
RECITALS
A. Seller is the "Bank Sponsor" under that certain mitigation banking instrument
entitled "Mitigation Banking Instrument, Big Woods on the Trinity Mitigation Bank, Anderson
County, Texas SWF-2002-00530," for Big Woods on the Trinity Mitigation Bank (the "MBI")
issued by the Department of the Army, Fort Worth District, Corps of Engineers ("USACE"), and
setting forth the requirements for the development of that certain mitigation bank known as the
"Big Woods on the Trinity Mitigation Bank" (the"Subject MB").
B. Seller has received approval from the USACE to offer certain compensatory
mitigation credits (the "Credits") for sale as compensation for unavoidable adverse impacts to, or
for the loss of, among other things,jurisdictional waters of the United States, including wetlands
and streams, and other natural habitats and ecosystems, located within that certain geographical
service area more particularly depicted on the attached Exhibit A (the "Service Area") or other
areas as may be approved by the USACE in accordance with the MBI. The Credits being sold
pursuant to this Agreement are more particularly described on the attached Exhibit B.
C. Buyer desires to purchase from Seller,through Seller's exclusive marketing agent,
Mitigation Solutions USA,LLC, a Texas limited liability company("Agent"),and Seller,through
Agent, desires to sell to Buyer, a total of 1.5 Wetland Credits from Big Woods on the Trinity
Mitigation Bank(the "Subject Credits"), according to the terms and conditions set forth herein.
D. Buyer has obtained or will obtain all required authorization from the USACE under
Permit Number(s) SWF-2011-00103 for Buyer's purchase and use of the Subject Credits.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH ABOVE AND
THE REMAINING TERMS, COVENANTS AND CONDITIONS SET FORTH HEREIN THE
PARTIES AGREE AS FOLLOWS:
1. Purchase and Payment.
a. From the Subject MB, Seller agrees to sell and release to Buyer, and Buyer agrees
to purchase from Seller, 1.5 Credits for the total purchase price of$23,900.00 (the
"Purchase Price"), all as more particularly described on attached Exhibit B. The
Purchase and Sale Agreement for Credits OFFICIAL RECORD
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas CITY SECRETARY
FT.WORTH,TX
Purchase Price shall be due and payable to Agent on behalf of the Seller upon the
execution of this Agreement in immediately available U.S. funds.
b. BUYER ACKNOWLEDGES AND AGREES THAT (I) THIS AGREEMENT IS AN ARM'S-
LENGTH CONTRACT BETWEEN THE PARTIES; (II) SELLER HAS NO CONTROL OVER THE
ACTIONS OR INACTIONS OF THE USACE OR ANY OTHER GOVERNMENTAL AGENCY;
AND (III) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL
REPRESENTATIONS, DISCLOSURES AND WARRANTIES, EXPRESS OR IMPLIED, ARE
FULLY DISCLAIMED.
2. Sale of Subiect Credits. The Subject Credits shall be deemed sold by Seller and released
to Buyer immediately upon execution of this Agreement, subject only to Agent's receipt of
payment of the Purchase Price therefor in full, as evidenced by Seller's issuance of a final invoice
therefor marked"PAID IN FULL". Once full payment has been received by Agent for the Subject
Credits, the sale contemplated in this Agreement shall be deemed to have occurred, at which time
Agent will so notify the USACE (with a copy to the Buyer). Buyer's failure to remit such
payments in full for such released Credits, as provided above, shall constitute a material default
under this Agreement.
3. No Property Interest or Special Relationship. The sale of Credits as described herein is
not intended as a sale to Buyer of a security, license, lease, easement or possessory or non-
possessory interest in real property, nor the granting of any interest in the foregoing. The
relationships between the Parties are ordinary commercial relationships; the Parties do not intend
to create any other kind of relationship, such as principal and agent, a partnership, a joint venture
or any other special relationship.
4. Miti!ation Bank Maintenance. Notwithstanding the sale of the Credits to Buyer pursuant
to this Agreement, Seller shall remain responsible for performing all of the obligations of"Bank
Sponsor" under the MBI with respect to the Subject MB, including any maintenance, monitoring
and reporting obligations, and Buyer shall have no responsibility therefor; however, Buyer
covenants and agrees that it shall not violate, or otherwise commit any acts or omissions in
contravention of, the MBI. In addition, Buyer will be solely responsible for making all required
applications and seeking all required permits and authorizations from. the USACE or any other
governmental entity, as applicable, regarding its use and application of the Credits.
5. Indemnity and Release. TO THE EXTENT PERMITTED BY LAW, BUYER WILL
INDEMNIFY, DEFEND,RELEASE AND HOLD SELLER AND AGENT,AND ALL OF THEIR RESPECTIVE
AFFILIATES, CONTRACTORS AND AGENTS, TOGETHER WITH ALL THOSE PERSONS ACTING ON
BEHALF OF ANY AND ALL SUCH PARTIES, HARMLESS FROM AND AGAINST ALL CLAIMS, CAUSES
OF ACTION, LOSS, ATTORNEY'S FEES, COURT COSTS AND OTHER EXPENSES ARISING OUT OF
BUYER'S PURCHASE OF THE SUBJECT CREDITS,EXCEPT TO THE EXTENT ATTRIBUTABLE TO THE
NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER OR PERSONS ACTING
ON ITS BEHALF.
6. Representations and Covenants.
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas
a. Seller's Representations and Covenants. Seller represents and covenants the
following to Buyer as of the Effective Date:
i. Seller is a Texas limited partnership duly organized, validly existing, and in
good standing under the laws of the state of Texas with authority to sell the Credits to
Buyer. Seller has full capacity, right, power and authority to execute, deliver and perform
this Agreement and all documents to be executed by Seller pursuant hereto,and all required
action and approvals therefor have been fully taken and obtained. The individuals signing
this Agreement and all other documents executed or to be executed pursuant hereto on
behalf of Seller is and shall be duly authorized to sign the same on Seller's behalf and to
bind Seller thereto.
ii. There is no litigation pending or, to Seller's actual knowledge, without
further inquiry, threatened against Seller that might affect the Subject MB, the Credits or
Seller's ability to perform its obligations under this Agreement.
iii. Seller has not received notice of any material violation of any law,
ordinance, regulation or requirements affecting the Subject MB.
iv. Seller has not received notice of any condemnation or land-use proceedings
or any governmental inquiries or notices affecting the Subject MB.
V. The Credits shall be sold free and clear of all liens and encumbrances.
vi. Except as expressly stated above or otherwise in this Agreement, Seller
makes no representation or warranties with respect to the Subject MB, the Credits or
otherwise in connection with this Agreement.
b. Buyer's Representations and Covenants. Buyer represents and covenants the
following to Seller as of the Effective Date:
i. Buyer is validly existing, and in good standing under the laws of the State
of Texas. Buyer has full capacity, right, power and authority to execute, deliver and
perform this Agreement and all documents to be executed by Buyer pursuant hereto, and
all required action and approvals therefor have been fully taken and obtained. The
individuals signing this Agreement and all other documents executed or to be executed
pursuant hereto on behalf of Buyer are and shall be duly authorized to sign the same on
Buyer's behalf and to bind Buyer thereto.
ii. Buyer has made all reviews, inspections and investigations deemed
necessary or prudent by Buyer regarding the Credits, and sought the counsel and advice of
all consultants, attorneys and other experts regarding the Credits or its purchase thereof
under this Agreement; consequently, Buyer has fully satisfied itself that such Credits will
serve as the anticipated compensation for the impacts to, and losses in, the Service Area
Purchase and Sale Agreement for Credits
Bis Woods on the Trinity Mitigation Bank,Anderson County,Texas
intended by Buyer, subject to the approval of the USACE and any other appropriate
governmental agencies.
iii. Buyer is not in the business of marketing, selling or re-selling Credits and
agrees to use all of its Credits purchased pursuant to this Agreement solely and exclusively
as compensation for unavoidable adverse impacts to, or losses within, the Service Area to
which the Credits may be applied,as determined by the USAGE,and then only to the extent
such impacts and losses are caused by Buyer's own business activities in such Service
Area. Buyer further covenants not to re-sell any of the Subject Credits.
iv. Except as expressly stated above or otherwise provided in this Agreement,
Buyer makes no representation or warranties with respect to the Credits or otherwise in
connection with this Agreement.
C. No Other Brokers. Seller and Buyer each represent and warrant to the other that
they have not had any dealings with any brokers, finders or agents, and no commissions or fees
are payable, in connection with this Agreement, other than to Agent, whose commission shall be
payable by Seller pursuant to a separate agreement. EACH PARTY AGREES TO RELEASE AND HOLD
THE OTHER PARTY,AND THOSE PERSONS ACTING ON BEHALF OF SUCH OTHER PARTY,HARMLESS
FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION, LOSS, ATTORNEYS' FEES, COURT COSTS
AND OTHER EXPENSES ARISING OUT OF ANY CLAIM BY ANY PERSON OR ENTITY CLAIMING BY,
THROUGH OR UNDER THE RELEASING PARTY FOR ANY OTHER BROKER'S OR FINDER'S FEE OR
COMMISSION ARISING UNDER THIS AGREEMENT. The obligations of the Parties under this
provision will survive termination of this Agreement and the closing of each sale.
7. Default and Remedies.
a. Seller's Default; Buyer's Remedies. If Seller shall be in default hereunder, Buyer
may deliver written notice to Seller stating the alleged default of Seller and the action required by
Seller to cure such default, whereupon Seller shall have thirty(30) days to cure the alleged default
to Buyer's reasonable satisfaction (and performance of Seller's obligations under this Agreement
shall thereupon be delayed, if necessary, until the end of such 30-day period). If such default is
not cured within such 30-day period, then Buyer may, as its sole and exclusive remedies for such
default, elect to terminate this Agreement by written notice to Seller and Agent, and receive a full
refund of the Purchase Price.
b. Buyer's Default; Seller's Remedies. If Buyer shall be in default hereunder, Seller
may deliver written notice to Buyer stating the alleged default of Buyer and the action required by
Buyer to cure such default, whereupon Buyer shall have ten (10) days to cure the alleged default
to Seller's reasonable satisfaction. If such default is not cured within such 10-day period, then
Seller shall have the right to pursue any and all remedies as may be available at law or in equity.
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson Counb,Te.yas
C. Limited Liability. No individual member, partner, manager, officer, director,
shareholder, employee, contractor or agent of Seller shall be personally liable for any judgment or
deficiency brought under this Agreement. Buyer waives all claims against Seller and Agent, and
all of their respective affiliates, contractors and agents, together with all those persons acting
through or on behalf of any and all such parties, for consequential, special or punitive damages of
any kind allegedly suffered by Buyer or any related parties. Likewise, Seller waives all claims
against Buyer, and all of its respective affiliates, contractors and agents, together with all those
persons acting through or on behalf of any and all such parties, for consequential, special or
punitive damages of any kind allegedly suffered by Seller or any related parties.
8. Notice. Any notice or demand permitted or required by this Agreement shall be made in
writing and shall be delivered by hand delivery, which shall include delivery by reputable national
overnight courier service, such as Federal Express, or by electronic transmission (including
electronic mail or facsimile) with confirmation of transmission followed by hand delivery of a
copy of such notice or demand. Any such notice or demand shall be effective and deemed received
on the date delivered to the address of the addressee, as indicated on the receipt confirmation if
delivered by hand, or if delivered by electronic transmission, on the date of such transmission, as
indicated on the receipt confirmation. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed receipt of the notice,
demand or request sent. For the purposes of this Section, notices shall be directed as follows:
If to Seller: Mitigation Management, Ltd
2557 State Highway 7 East
Center, TX 75935
Attn: J. Mike Bird
Email: jmbird@advancedecology.com
With a copy to: Mettauer Law Firm, PLLC.
403 Nacogdoches Street, Suite 1
Center, Texas 75935
Attn: Matthew D. Mettauer
Email: matthew@mettauerlaw.com
Phone: (936) 598-9400
If to Agent: Mitigation Solutions USA, LLC
3200 Wilcrest, Suite 460
Houston, TX 77042
Attn: Terry McKenzie
Email: terry@msusa.com
Phone: (713) 812-9000
If to Buyer: City of Fort Worth
Purchase and Sale Agreement for Credits
Big Woods on the Trinit} Mitigation Bank,Anderson Count},Texas
Transportation & Public Works Dept.
Attn: Leon Wilson, Jr., P.E.
1000 Throckmorton Street
Fort Worth, TX 76102
Email: leon.wilson@fortworthtexas.gov
Phone: (817) 392-8883
9. Restrictions on Assignment. No party will be entitled to assign this Agreement to any
person without the prior written consent of all of the Parties hereto, and any attempted assignment
without such consent shall be deemed null and void. Notwithstanding the foregoing, Seller may
assign this Agreement in connection with the underlying sale or conveyance of the Subject MB
(or the underlying land and any Credits attributable thereto, including all or a portion of the
Credits);provided Seller gives Buyer written notice of such assignment, together with all pertinent
documentation and related non-confidential information regarding such assignment as Buyer may
reasonably request.
10. Confidentiality. Buyer and Seller each agree that, except with the prior written permission
of the other Party, it shall at all times keep confidential and not divulge, furnish or make accessible
to anyone any confidential information, knowledge or other information concerning or relating to
(a) the business or financial affairs of the other Party to which it has been or shall become privy
by reason of this Agreement, (b) the terms of this Agreement and the transaction contemplated
hereby or thereby, and/or (c) the content of any discussions or negotiations relating to this
Agreement (collectively, the "Confidential Information"); provided, however, that such Party
may disclose the terms and conditions of this Agreement as required by a court or as otherwise
required by law or in confidence and as reasonably necessary (i) to any of its officers, directors,
employees, affiliates, agents, representatives and advisors, (ii) to its legal counsel, accountants,
banks and financing sources, and their advisors, and (iii) to its actual or potential investors or
owners. If either Party is requested or required (by oral question or request for information or
documents in any legal proceeding, interrogatory, subpoena, civil investigative demand, public
open records request or similar process) to disclose any Confidential Information other than as
permitted above, such Party shall promptly so notify the other Party to allow such other Party
sufficient time to seek an appropriate protective order or waive compliance with the provisions of
this Section.
11. Miscellaneous.
a. The section headings in this Agreement are for convenience of reference only and
are not intended, to any extent and for any purposes, to limit or define text of any section of
subsection thereof. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement will nonetheless
remain in full force and effect.
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson Count},Texas
b. This Agreement and all rights, duties and responsibilities hereunder shall be
interpreted and construed in accordance with the laws of the State of Texas, without regard to
choice-of-law rules of any jurisdiction. Venue shall be in Shelby County, Texas, except as
otherwise provided by applicable law.
C. This Agreement may be executed in any number of counterparts, each of which
shall be considered an original, but such counterparts together shall constitute one and the same
instrument. The signature pages may be detached from one counterpart and reattached to another
counterpart in order to form a fully-executed original instrument. Signatures to this Agreement
transmitted by facsimile or electronic mail will be valid and effective to bind the party so signing.
Each party agrees to promptly deliver any execution original to this Agreement with its actual
signature to the other Parties, but a failure to do so will not affect the enforceability of this
Agreement.
d. This Agreement shall be binding upon and inure to the benefit of the Parties'
respective successors, successors-in-title and assigns. There are no third-party beneficiaries of this
Agreement.
e. Each party shall be responsible for its own attorneys' fees in connection with the
subject matter of this Agreement. The rule of construction that ambiguities in a document will be
construed against the drafting party will not be applied in interpreting this Agreement. If either
party retains an attorney to enforce this Agreement, the party prevailing in litigation is entitled to
recover reasonable attorney's fees and court and other costs.
f. Each party agrees that it will, at any time and from time to time after the execution
of this Agreement, upon request of the other party, do, execute, acknowledge and deliver, or will
cause to be done, executed, acknowledged or delivered, all such further acts, deeds, assignments,
conveyances and assurances as may reasonably be required to carry out the intended purposes of
this Agreement.
g. This Agreement, together with its exhibits, constitutes the entire agreement of the
Parties concerning the sale of the Credits to Buyer. There are no oral representations, warranties,
agreements or promises pertaining to such sale not incorporated in writing in this Agreement.
h. This Agreement may be amended only by an instrument in writing signed by the
Parties. No term or condition of this Agreement will be deemed to have been waived or amended
unless expressed in writing, and the waiver of any condition or the breach of any term will not be
a waiver of any subsequent breach of the same or any other term or condition.
i. The obligations of this Agreement that cannot be performed before termination of
this Agreement or before closing of the sale of any subset of the Credits will survive termination
of this Agreement or such closing, and the legal doctrine of merger will not apply to these matters.
j. Time is of the essence of this Agreement and each provision hereof. If the last day
upon which performance would otherwise be required or permitted is a Saturday, Sunday or
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,1 eras
holiday, then the time for performance shall be extended to the next day which is not a Saturday,
Sunday or holiday. The term "holiday" shall mean all and only mandatory federal holidays
including which deliveries by the United States Postal Services are suspended.
[Signatures commence on following page]
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas
Seller Signature Page to
Purchase and Sale Agreement for Reserved Mitigation Credits
IN WITNESS WHEREOF,the Parties execute this Agreement as of the Effective Date.
SELLER:
MITIGATION MANAGEMENT, LTD.
J. ik Bird, Manager
of Texas Mitigation Management, LLC,
General Partner of Mitigation Management, Ltd.
Date:
[Signatures continue on following page]
Buyer Signature Page to
Purchase and Sale Agreement for Reserved Mitigation Credits
IN WITNESS WHEREOF, the Parties execute this Agreement as of the Effective Date.
BUYER:
CITY OF FORT WORTH, TEXAS
a Texas Municipality
�.
By: 7
Jesus J. Chapa
Assistant City Manager
RECOM LADED: , I
By: W. W
DouglasAW. Wiersig, P.E., Di or
Transportation & Public Wo r Department
APPROVED AS TO FORM AND LEGALITY:
By:
Douglas W. Black
Assistant City Attorney
ATTE F F®/? ,
wow
ary . Kayseri
City Secretary .0
AS
M&C: WA-
Date:
[End of Signatures;Acknowledgements on following pa
OFFICIAL.R
CORU
CITY SECRETARY
FT.WORTH,TX
Agent's Acknowledgement of
Purchase and Sale Agreement for Reserved Mitigation Credits
ACKNOWLEDGED AND AGREED TO BY:
AGENT:
MITIGATION SOLUTIONS USA, LLC
a Texas limited liability company
B •
T y McKenzi , President
Date: 1#4 y 6 1, �?O/k
EXHIBIT A
Big Woods Mitigation Bank
Service Area Map
C-1111 I
Red-Lake Texoma amen
111302 �,.q, Red-Littie
Archer C a Montague Cooke Gainesville 111401
�.3•ay s..r
Fannin Paris ReO
River
Dalt �
Jack I 8r9 CYP1114 $ufpllll1
young Mile Denton Illy/y"`� 11UO3
Denson
Contn� K��Y Sulphur Spring
Greenville Prin s
T
•Plano Hunt Fran a
Mineral Wells /
t O elle i` Roc kwal,
L. iarran• ` Raine
sle pne n= Palo Pinto Weatherford e Fort,Worth Dallas ! Sabine
Terrell 120100
I Arlington •
Fa zr Wood
r—"--`—
Kaufman
Upper Tahiti van ran 1, 'ler
Middle Brazos-8osque Hood Mrr;o-r 120307
Eastland 120602 Clebume
e Ells Ennis __ Tyler
wno - •
.tee cn.mlo�• Athens / Smith
Hentlersoner l/
Corsicana
4rl�a
Ha+a rro
e""'^ Wn9 HIII
Jacksonville e
ort. Dallas \ C hero k e e
�n� ��<�`-^• Big Woods Mitigation Bank
.oneeeaon Palestine 120200
Far`.eld 120200
^ Waco Freeslone
Mills McLennan
Little Coryen Limestone \
\
X20702 s\
/ \ Lower Tnnity
\ Falls \// 120302 eororiee
Sar Saba
Its n:p as as / // Geon Houston
\Killeen• Temple Lower Brazos
2277 120701
bents
y Robertson Madison
Trinify
/ Madlsanvlae•
MI?am �w j�
0 10 5 20 30 40 50 8eaa0. wal
Miles Wllliem eon Grd rhes
* Mitigotion Bank Location ®6 Digit HUCs • Cities
Service Area USACE District Boundaries Major Roads
®Counties - �—
K
Mitigation Solution sUSA_ 'r
www mauaa.Com t"
EXHIBIT B
Purchase of Wetland Credits
Buyer will purchase 1.5 wetland Functional Capacity Units from Big Woods on the Trinity
Mitigation Bank.
Total Purchase Price: $23,900.00
The Purchase Price shall be due and payable to MITIGATION SOLUTIONS USA, LLC on
behalf of the Seller upon the execution of this Agreement in immediately available U.S.
funds.
FUNDING BREAKDOWN SHEET
City Secretary No.
Department FID Amount
TPW 39008 0200431 5740010 C0768 CO2383 $23, 900. 00
Total: $23, 900 . 00