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Home My WebLink AboutContract 48156 crnr sEcRETARY�l,`�I COLT ACT NO. MITIGATION CREDIT SALES AGREEMENT This Mitigation Credit Sales Agreement (the "Agreement") is entered into by and between Rockin' K on Chambers Creek LLC, a Texas limited liability company ("Seller"), and City of Fort Worth, a Texas home rule city(the "Purchaser"). RECITALS: A. Pursuant to that certain Mitigation Banking Instrument Agreement dated December 19, 2014 (the "MBI") between, among others, Seller and the U.S. Army Corps of Engineers ("USACE"), Seller, as Sponsor, established the Rockin' K on Chambers Creek Mitigation Bank under Permit Number SWF-2012-00323, which permit was issued effective February 20,2015 (the "Bank"). B. Pursuant to the terms of the MBI, Seller is authorized to transfer to third parties mitigation bank credits, as authorized by USACE, to compensate for the loss of off-site aquatic resources. C. Purchaser intends to improve, enhance or modify certain real property (the "Property"), and in conjunction with such activities, USACE has required that the Purchaser compensate for the loss of certain aquatic resources. D. The Purchaser desires to purchase 371.55 ephemeral, in-channel credits and 69.66 ephemeral riparian buffer credits (the "Reserved Credits") to satisfy the Purchaser's mitigation obligation, which mitigation obligation is intended to offset impacts to 770 linear feet of ephemeral stream channel with a TXRAM score of 19.1, all as described in the application and related materials pursuant to Permit Number SWF-2015-00533 (the "Mitigation Obligation"). AGREEMENT: NOW, THEREFORE, for good and valuable consideration described in this Agreement, the receipt and sufficiency of which are hereby acknowledged, Purchaser and Seller agree as follows: 1. Sale of the Reserved Credits. Upon receipt of the full Purchase Price (defined below) on or before November 8, 2016, Seller hereby agrees to sell and assign, and does hereby sell, assign, transfer and convey to Purchaser, and Purchaser hereby agrees to purchase and accept, and does hereby purchase, accept, acquire and receive from Seller, the Reserved Credits, in satisfaction of the Mitigation Obligation. In the event this Agreement is not authorized by the Purchaser's governing body on or before November 1, 2016, this Agreement shall be deemed null and void and of no force or effect, and neither Seller nor Purchaser shall have any obligation, one to the other. 2. Payment for Reserved Credits. In consideration of the delivery and conveyance of the Reserved Credits, the Purchaser agrees to pay to Seller the sum of Three Hundred Eighty Five Thousand Four Hundred Eighty Two and No/00 Dollars ($385,482.00) for the Reserved OFFICIAL RECORD CITY SECRETAMY 4624125 v3(00560.00023.000) FT. WORTH, 7A Credits purchased pursuant to this Agreement. The Purchase Price will be payable in cash upon execution hereof by Seller and Purchaser. 3. Representations. (a) Representations of Seller. Seller represents to the Purchaser the following: (i) Seller is a Texas limited liability company, duly formed and validly existing; (ii) the Reserved Credits are free and clear of encumbrances, other than those imposed by the MBI; (iii) Seller 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 Seller, enforceable in accordance with their terms, except as such enforcement may be limited by the rules and regulations of the USACE, and applicable law. (v) The Bank is operated, and will continue to be operated, in accordance with all applicable USACE laws, rules, regulations, orders, permit requirements, agreements and guidance, including, without limitation, the MBI and Permit Number SWF-2012-00323. Other than as expressly set forth above, Seller does not make any representations or warranties to Purchaser, including, without limitation, the suitability of the Reserved Credits or whether or not the Reserved Credits will satisfy, in whole or part, the Mitigation Obligation of Purchaser. Purchaser will rely on its separate permit and authorization from the USACE to satisfy its Mitigation Obligation. (b) Representations of Purchaser. The Purchaser represents to Seller the following: (i) the Purchaser is a Texas home rule city; (ii) the Purchaser has duly taken or is in the process of taking 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 applicable law. 4624125 v3(00560.00023.000) Other than as expressly set forth above, Purchaser does not make any representations or warranties to Seller. 4. Confidentiality. Except as required by applicable laws, the Purchaser shall keep absolutely confidential the existence of this Agreement, its terms, and all information regarding the MBI, Seller, the Reserved 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 Seller 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 Seller 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 Seller or the Purchaser in any public records or in any document made public. 8. Attorney's Fees. If there is a dispute between the Purchaser and Seller under this Agreement, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorneys' fees, paralegals' fees and appellate and post judgment proceedings and all costs thereof 9. Final Agreement. This Agreement embodies the entire agreement of the Purchaser and Seller. This Agreement shall supersede all previous communications, discussions, representations, advertisements, proposals or agreements either verbal or written, between the Purchaser and Seller not otherwise contained in this Agreement. The sale transaction contemplated by this Agreement is final, and there shall be no refunds once payment is made for the Reserved Credits issued hereunder. 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 Seller. 12. Choice of Laws: Venue. This Agreement shall be governed by the laws of the State of Texas, and the exclusive venue for all disputes with respect to this Agreement shall be in Dallas, Dallas 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, 4624125 v3(00560.00023.000) 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. IN WITNESS WHEREOF the Purchaser and Seller have executed this Agreement effective for all purposes as of the day of Augest-2016. <V*� SELLER: ROCKIN' K ON CHAMBERS CREEK LLC a Texas limited liability company By: A �4- ) Name: aymo J. Ka4e Title: Man r Address: 1601 Elm Street, Suite 3700 Dallas, Texas 75201 Telephone: (214) 777-4200 Facsimile: (214) 777-4299 Tax ID#: 47-3121427 PURCHASER: CITY OF FORT WORTH, a Texas home rule city By: Name: Jesus J. Chapa Title: Assistant City Manager OFFICIAL RECORD Address: 1000 Throckmorton Street CITY SECRETARY Fort Worth, Texas 76102 FIE OMI @ H9 7y. Telephone: (817) 392-5804 _ Facsimile: Tax ID#: N/A FfCOP 0 0000c, , o000 �°oo��t3 APPROVED AS TO FORM AND LEGALITY: S Ausmd baa V o o� Ory0000000000` CITY 0TMEY 5 H°s ith' sears , -�' �fi,iN.it Vl/ � 4624125 v3(00560.00023.000)