HomeMy WebLinkAboutContract 37012 CITY SECRETARY
CONTRACT NO. 3701a.
CREDIT SALES AGREEMENT
This Credit Sales Agreement (the "Agreement") is entered into by and between South Forks Trinity
River Mitigation Group 1, LP., a Texas limited partnership ('SFTRMGI"), and the City of Fort Worth,
Texas, a Municipal Corporation(the 'Purchaser')_
RECITALS:
A. Pursuant to that certain Mitigation Banking Instrument Agreement dated December 2006(the
"MBI") between, among others, SFTRMGI., a Texas limited partnership, and South Forks Trinity
River Mitigation Bank, Inc., a Texas corporation, (SFTRMB-Inc.) as the sponsor, and the U.S.
Army Corp of Engineers("USACE"),SFTRMB-Inc.,as Sponsor of the Bank,established the South
Forks Trinity River Mitigation Bank(SFTRMB)under Permit Number 200300558(the"Bank").
B. Pursuant to the terms of the MBI, SFTRMGI, and SFTRMB-Inc., 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").
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 two and one tenth (2.1) 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 SFTRMB agree as follows:
1. Sale of the Credits. SFTRMGI 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 SFTRMGI,two and one tenth(2.1)
Credits.
Upon full and complete execution of the Agreement and payment of the Credits as described
below, Purchaser shall submit proof of purchase and transfer of ownership to the USACE, in a
form which is sufficient to the USACE. Purchaser agrees to submit further documents to USACE
and the Purchaser as may be reasonably necessary to show Purchaser's ownership of the
Credits purchased.
2. Payment for Credits. Inconsideration of the delivery of the Credits,the Purchaser agrees to pay
to SFTRMGI the sum of fifty two thousand eight hundred eighty eight dollars($52,888.00)for
all of the Credits purchased pursuant to this Agreement.
3. Representations.
(a) Representations of SFTRMGI. SFTRMGI 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;
^0�1 (ii) SFTRMGI 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
04 _ . -
(iii) this Agreement, and all other agreements executed in connection with this
Agreement, are the legal, valid and binding obligations of SFTRMB, 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.
(iv) 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
200300558.
(v) SFTRMGI represents and/or warrants to Purchaser that it is aware USACE has
required that the Purchaser provide off-site wetland mitigation to compensate for
impacts to USACE jurisdictional wetlands and that SFTRMGI is not aware of any
circumstance, regulation or prohibition for Purchaser's use of the Credits to
satisfy, in whole or part,any mitigation obligation of the Purchaser.
(b) Representations of Purchaser. The Purchaser represents to SFTRMGI the following:
(i) the Purchaser is a municipal corporation, 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 relatingto
the enforcement of creditors' rights.
Other than as expressly set forth above, Purchaser does not make any
representations or warranties to SFTRMGI.
4. 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.
5. 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 SFTRMGI or the Purchaser without the written
consent of the other.
6. Attorney's Fees. If there is a dispute between the Purchaser and SFTRMGI 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.
7. Final Agreement. This Agreement embodies the whole agreement of the Purchaser and
SFTRMGI. This Agreement shall supersede all previous communications, discussions,
representations,advertisements, proposals or agreements either verbal or written, between the
Purchaser and SFTRMGI not otherwise contained in this Agreement.
8. Captions. The captions in this Agreement are included for convenience only and shall be given
no legal effect whatsoever.
9. Modification. This Agreement may not be modified except by written instrument executed by
both the Purchaser and SFTRMGI.
10. 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 Tarrant County, Texas.
11. 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.
12. 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.
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IN WITNESS WHEREOF, the Purchaser and SFTRMB have executed this Agreement effective for all
purposes as of the�day of APe� 1 200$
SFTRMGI:
South Forks Trinity River Mitigation Group 1, LP
�-; a Texas limited partnership
.-�.� �u tzGNi�,sER UOE s NOT C �05�
By: South Forks Trinity River Mitigation Bank,
O� i � GRE9 k-TS S$-Q�} Inc.
Vy
Its: General Partner
T'k is RC- RFC►.'%EN-, k(', 1( -�,t -Df E eb
N V l 1 ANb \10 I b A W p NE,T-TA�c R
11 By:
TR H 1 1n1 1 KPNE ANY t AlDl JjKnny Mck-Powers
11 Its: President
Address: 1150 Highway 205 South
/z ® Rockwall,Texas 75032
Telephone: 972/771.3738
Facsimile: 972/771.6881
THE PURCHASER:
City of Fort Worth,Texas
a Municipal Corporation
By: Ferna do Costa
Its:Assistant City Manager
Address: 1000 Throckmorton
Fort Worth,Texas 76102
Telephone: 817.392.8042
Contract- Aut-11orizatioa
�- o D
Marty Hendrix, Secretary
Date
Approved as to Legality
r. .
AsslftnVCity Attorney
%'°'il 1U��D
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Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 4/22/2008
DATE: Tuesday, April 22, 2008
LOG NAME: 30MITIGATEM244B REFERENCE NO.: **C-22773
SUBJECT:
Authorization to Enter into a Credit Sales Agreement with South Forks River Mitigation Group 1, LP,
for the Mitigation of Displaced Wetlands Associated with the M-244B Emergency Sanitary Sewer
Rehabilitation Project, DOE 5736
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to:
1. Execute a Credit Sales Agreement with South Forks River Mitigation Group 1, LP (SFTRMG1), for the
purchase of two and one tenths credits for off-site wetland mitigation to satisfy the City's obligation to
mitigate impacts to U. S. Army Corps of Engineers (USAGE) jurisdictional wetlands in conjunction with the
M-244B Emergency Sanitary Sewer Rehabilitation (M-244B) Project; and
2. Approve the expenditure of$52,888.00 for the purchase of two and one tenths credits for off-site wetland
mitigation from SFTRMG1.
DISCUSSION:
Due to the rehabilitation of Sanitary Sewer Main M-244B that crosses the Exelon Power Plant property and
under Lake Arlington, an area of wetlands on the Exelon property will be temporarily filled in. These
wetlands are under the jurisdiction of the USACE.
A Mitigation Banking Instrument Agreement dated December 22, 2006 between SFTRMG1 and the USACE
established the South Forks Trinity River Mitigation-Bank under Permit Number 200300558.
As mitigation for the temporary loss of the wetlands, due to the M-244B project, the USACE will allow the
City to purchase two and one tenths credits at $25,185 per credit or$52,888 from SFTRMG1.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current capital budget, as appropriated, of the
Sewer Capital Projects Fund
TO Fund/Account/Centers FROM Fund/Account/Centers
P274 541100 705170083441 $52,888.00
Submitted for City Manager's Office by: Fernando Costa (8476)
http://apps.cfwnet.org/councii_packet/Reports/mc_print.asp 4/25/2008
Page 2 of 2
Originating Department Head: A. Douglas Rademaker (6157)
Additional Information Contact: Deanna Cody (8379)
http://apps.cfwnet.org/council_packet/Reports/mc_print.asp 4/25/2008