HomeMy WebLinkAboutContract 53904 RECEIVED
MAY 13 2420 CSC No.53904
CIfY OF VoRT WORTH
CITY SECRETARY
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 four-tenths (0.4) 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 four-
tenths (0.4)Credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the
Purchaser agrees to pay to TRMB the sum of Twenty-Eight Thousand and Five Hundred Dollars
and no cents ($28,500.00) for all of the Credits purchased pursuant to this Agreement.
C11Y SECRETAR1Fr, WORTH,7X
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3. Representations.
(a) Representations of TRMB. TRMB represents to the Purchaser the
following:
(i) 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:
(i) 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.
8. 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 remainder 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 12th day of May , 2020
THE PURCHASER: TRMB:
CITY OF FORT WORTH,TEXAS TRINITY RIVER MITIGATION BANK, L.P.
a Texas Municipality a Texas limited partnership
47�l Z� � By: Wetland Partners,L.P.
By: Dana Burghdoff(may 12,2gM 6yl Its: General Partner
Dana Burghdoff
Its: Assistant City Manager By: WF Investments, Inc.
Its: General Partner
RECOMMENDED:
By. G
By: W lUang Joifnson(May 11,2020) 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
S(Ma Tax ID#: 20-2137693
By:
1131 c y 12,202D]
Douglas W. Black
Its: Assistant City Attorney
ATTEST: �O
`s' `.
0�:`:
Mary J. Kayser9
Its: City Secretary °,
M&C: NIA :°.
Date: NIA
Property Management Department Contract Compliance Manager:
401 West 13'Street By signing, I acknowledge that I am the person responsible for
Fort Worth, Texas 76102 the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
Telephone: (817} 392-8014 Rad FLO��.�
Fax: (817) 392-8488 Raul ELope=(f—�2020)
Raul E. Lopez
Engineering Manager OFFICIAL REC RD
CITY SECRETARY
f . iiU��Tt , °�
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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 May 7 , 2020 , (the"Effective Date") between Mitigation Management, Ltd, a Texas
Limited Partnership, ("Seller") and City of Fort Worth , a Texas municipality
("Buyer"), collectively referred to herein as the "Parties,"regarding 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 "MBT')
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 "SubjectMB").
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 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 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 1.2 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
Pen-nit Number(s) SWF-2018-00481 for Buyer's purchase and use of the Subject Credits.
E. Buyer desires to purchase from Mitigation Management, Ltd (MML), through its
exclusive marketing agent Mitigation Solutions,USA, LLC, and MML,through Agent, desires to
sell to Buyer the aforementioned Subject Credits according to the terns and conditions set forth
herein:
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:
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P a s e I I
1. Purchase and Payment.
a. From the Subject MB, Seller agrees to sell to Buyer, and Buyer agrees to purchase
from Seller, 1.2 Credits for the total purchase price of $22,280 (the "Purchase
Price"), all as more particularly described on attached Exhibit B. The 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 Subject Credits. The Subject Credits shall be deemed sold by Seller 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. Mitigation 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 IRT,the USACE or any
other governmental entity, as applicable, regarding its use and application of the Credits.
5. Release. BUYER WILL 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
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P ;1 u e 12
ATTRIBUTABLE TO THE NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
SELLER OR PERSONS ACTING ON ITS BEHALF.
6. Representations and Covenants.
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
snakes 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
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P i g c 13
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
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 USACE,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 DEFEND,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 INDEMNIFYING 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.
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
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas f a «e 14
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 any 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 acceptor 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(-,adv-eco.com
With a copy to: Mettauer Law Firm,PLLC
403 Nacogdoches, Suite 1
Center,TX 75935
Attn: Matthew D. Mettauer
Phone: (936) 598-9400
Email: matthewAmettauerlaw.com
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
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P a u e 15
If to Buyer: City of Fort Worth
200 Texas Street
Fort Worth, TX 76102
Attn: Dana Burghdoff
Email:
Dana.Burghdoff@fortworthtexas.gov
fortworthtexas.gov
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 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 County,Texas P a 2 c 16
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 thud-party beneficiaries of this
Agreement.
C. 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
holiday, then the time for performance shall be extended to the next day which is not a Saturday,
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P a e e 17
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 following page]
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P a ;e 18
Mirchase nerd Sale Agree meat for•Mitigation Credits
BUYER IN WITNESS WHEREOF, the Purchaser and MITIGATION MANAGEMENT,
LTD have each executed this Agreement to be effective as of the date subscribed by the
City's designated Assistant City Manager("Effective Date").
BUYER: SELLER:
CITY OF FORT WORTH MITIGATION MANAGEMENT, LTD
a Tetras Municipality
By: Done Rwghdoff(May 12 By:
Dana BurghdoPf J. t ike Bird
Its: Assistant City Manager Member and Manager
of Tetras Mitigation Management, LLC,
General Partner of Mitigation Management,
Ltd.
RECOMMENDED: AGENT: j
Mitigation Solutions USA, LLC
By: VtSarg Jo n(May 11.202nt By: G
William M. Johnson Terry mikenzie
Its: Director, Department of Its: President
Transportation/Public Works '
2557 State Highway 7 E I
APPROVED AS TO FORM AND Center, TX 75935
LEGALITY:
—
SNAL
By, �elack(May12,2020] ' Telephone: 713-812-9000
Douglas W. Black Fax: 936-598-9579
Its: Assistant City Attorney Tax ID: 26-2198213
ATTEST:
By. Mary J. Kayser
Its: City Secretary
Contra(A Gomp:"ante Manage.,:
ivI&C: NIA By signing, I acknowledge that I am the person responsible for
MIA the monitoring and administration of this contract, inclu6ing i
Date: _ ensrtringall performance and reporting requirements.
va
Rout E Lopez `/ay 10,2020)
Raul E. Lopez
Engineering Manager �flRECORD
Purchase and stile rl;rcement for Credits CO E �1�
Bib,Woods on the Trinity Mitigation Bank.Anderson Comity,Texas �
IFT, WORTH,TX �
EXHIBIT A
Big Woods Mitigation Bank
Service Area Map
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Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Bank,Anderson County,Texas P it g e 10
EXHIBIT B
Purchase of Wetland Credits
Buyer will purchase 1.2 wetland Functional Capacity Units from Big Woods on the Trinity
Mitigation Bank.
Total Purchase Price: $22,280
The 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.
Purchase and Sale Agreement for Credits
Big Woods on the Trinity Mitigation Batik,Anderson County,Texas P a a e 11
Mill Branch
CREDIT SALES AGREEMENT
This CREDIT SALES AGREEMENT (hereinafter referred to as "Agreement") is
made and entered into this day of , 2020 by and between MILL
BRANCII LLC, a Delaware limited liability company(hereinafter referred to as"MB"),
and the CITY OF FORT WORTH, TEXAS (hereinafter referred to as"Purchaser").
1. PROJECT NAME: Harmon Road
(hereinafter the "Project")
USACE PERMIT NUMBER: SWF-2018-00481
USACE PERMIT TYPE: NWP 14
SERVICE AREA: Mill Branch Secondary
PURCHASER: City of Fort Worth
200 Texas Street
Fort Worth,Texas 76102
2. PRICING:
Number of credits purchased: 27
Credit type: 27 Intermittent credits
Credit price(per unit): $1,400
Total Purchase Price $37,800.00
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 thirty
seven thousand eight hundred dollars and 00/100($37,800.00), representing the
Total Purchase Price.
3.2 Sale and Transfer: Immediately following M B's receipt of the Total
Purchase Price,27 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. Arnry 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.
S. 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.
2
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 Travis
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 shall be
binding upon the Parties, their legal representatives, heirs, successors, and assigns to the
fullest extent of prevailing Iaw.
Signature page to follow
3
IN WITNESS WHEREOF, the Purchaser and Mill Branch LLC have each executed this
Agreement to be effective as of the date subscribed by the City's designated Assistant City
Manager("Effective Date").
THE PURCHASER: PROVIDER:
CITY OF FORT WORTII MILL BRANCH LLC
a Texas Municipality a Delaware limited liability company
By: UP,,&ryWV,ftff(May 12,2
Dana Burghdoff.
Its: Assistant City Manager
RECOMMENDED:
By: W&gminlnson(May 11,2020) By.
t
William M. Johnson J. AdE�m igga , PhD
Its: Director,Department of Its: Owner and President T
Trdnsportation/Public Works
APPROVED AS TO FORM AND Address: 3616 Far West Blvd Ste 117-361
LEGALITY: Austin,Texas 79731
iY IL1.ef.iia
By: ABlack(may 12,20201 Telephone: 512-241-3775
Douglas W. Black
Its: Assistant City Attorney Tax 1D: 45-1649460
ATTEST: k D oy2�
B 67
Mary J. Kayser
Its: City Secretary ,
Contract Compliance Manager:
M&C: NIA _ By signing, I acknowledge that I am the person responsible for
Date: N/A the monitoring and administration of this contract, including
ensuring all performance and reporting requirements.
6Lo e,
Raul E Lopez(May 0,2020)
Rain E. Lopez
Engineering Manager
OFFICIAL RECORD
4 CITY SECRETARY
Mill Branch
Date
Mr. Fred Land Delivered via Email
US Army Corps of Engineers
819'Taylor Street
Room 3A37
Fort Worth,'TX 76102
RE:CREDIT TRANSACTION NOTIFICATION for SWF-2018-00481;Harmon Road Project
Dear Mr. Land
Per our Mill Branch Mitigation Banning Instrument (MB1; 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 DATE with Mill Branch Mitigation Bank covering a portion of the
mitigation requirements under SWF-2018-00481. 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 Twenty-seven (27) Intermittent In-Channel Credits to be debited from the following
portions of Mill Branch Mitigation Bank
o TBD
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,
J.Adam Riggsbee,PhD
President
Cc: Brent]asper
Larry Clendenen
Dana Burghdoff
Mitigation Plan
Harmon Road
USACE Project Number SWF-2018-00481
Prepared by:
Kimley-Horn and Associates, Inc.
13455 Noel Road
Two Galleria Tower
Suite 700
Dallas, Texas 75240
For:
City of Fort Worth
ATTN: J.T. Auldridge, P.E.
200 Texas Street
Fort Worth, Texas 76102
August 5, 2019
KH No. 061018201
Introduction:
The study area is generally located along Harmon Road south of Heritage Trace Parkway in Fort Worth, Tarrant
County, Texas. The project proposes to impact waters of the U.S. to facilitate the expansion of Harmon Road to
facilitate increased traffic through the area. The project will include extending box culverts through an
intermittent stream and building a portion of the road within emergent wetlands and an open water feature.
Project Overview:
The total area involved in the project is approximately 2.2-acres. To facilitate the project, permanent (75-linear
feet) and temporary (30-linear feet) impacts to 105-linear feet; (0.04-acres) of intermittent stream; permanent
impacts to 0.04-acres of open water; and permanent impacts to 0.40-acres of emergent wetland are proposed at
two crossing locations. Mitigation is not proposed for temporary impacts.
Credit Calculations:
Stream Impacts to 75-1f intermittent
In accordance with the District's Stream Mitigation Method, at least 50% of the stream credits must be offset by
In Channel Credits. The other 50% can be offset with either Buffer or Legacy Credits.
Trinity River Mitigation Bank has Legacy credits in a primary service area that are to be debited at a ratio of
0.008 to 1 in section 8(B)3 of their MBI. Mill Branch Mitigation Bank has In Channel Credits available in a
secondary service area that are to be debited at an assessed TxRAM 1.0 score. The intermittent stream channel
scored a 0.48. The respective credit determination calculations follow.
50% Legacy
Trinity River Mitigation Bank—37.5-1f X 0.008 X 1.0=0.3 Credits
50% In Channel
Mill Branch Mitigation Bank—37.5-1f X 0.48 X 1.5 =27 Credits
Open Water Impacts to 0.04-ac
Trinity River Mitigation Bank has credits to offset unavoidable impacts to open water features. Their MBI, in
section 8(B)l requires a ratio of 2 to 1 for low- or medium-quality open water. A low-quality assessment has
been applied to the feature in their primary service area. The credit determination calculation is as follows.
0.04 X 2 = 0.08—rounds to 0.1 Credit
Medium Quality Wetland Impacts to 0.4-ac
Big Woods on the Trinity Mitigation Bank — uses a ratio of 3:1 for impacts to medium quality wetlands. the
wetlands scored 0.57 and 0.52 in the medium range, therefore the medium quality ratio was used. The bank is
in the primary service area for the impacts, therefore a 1.0 multiplier is used. Credit determination calculation
is as follows.
0.4 X 3 X 1.0— 1.2 Credits
1
DEPARTMENT OF THE ARMY
1;1
U.S.ARMY CORPS OF ENGINEERS,FORT WORTH DISTRICT
• P.O.BOX
FORT WORTH,TEXAS AS 76 76102-0300
October 2, 2019
Regulatory Division
SUBJECT: Project Number SWF-2018-00481, Harmon Road
Mr. Leon Wilson
City of Fort Worth, Public Works Dept.
200 Texas Street
Fort Worth, Texas 76102
Dear Mr. Wilson:
This letter is in regard to information received December 10, 2018, and subsequent
submittals dated July,3, and September 5, 2019, concerning a proposal by the City of Fort
Worth to expand Harmon Road to include box culverts located in the City of Fort Worth, Tarrant
County, Texas. This project has been assigned Project Number SWF-2018-00481. Please
include this.number in all future correspondence concerning this project.
Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (USACE)
regulates the discharge of dredged and fill material into waters of the United States, including
wetlands. USACE responsibility under Section 10 of the Rivers and Harbors Act of 1899 is to
regulate any work in, or affecting, navigable waters of the United States. Based on the
description of the proposed work, and other information available to us, we have determined this
project will involve activities subject to the requirements of Section 404.
We have reviewed this project under the pre-construction notification procedures of
Nationwide Permit General Condition 32 (Federal Register, Vol. 82, No. 4, Friday, January 6,
2017). We have determined the discharge of dredged or fill materials into waters of the United
States associated with this project is authorized by Nationwide Permit 14 for Linear
Transportation Projects. To use this permit, the permittee must ensure the work is in compliance
with the specifications and conditions listed on the enclosures and the special conditions listed
below. Additionally, all activities must comply with the water quality certification conditions of
the Texas Commission on.Environmental Quality (TCEQ) located at
http://www.swf.usace.army.mil/Portals/47/Users/053/21/821/NWP%202017%2OTexas%20401 c
ert.pdf. The special conditions are as follows:
1) The permittee shall implement and abide by the "Mitigation Plan for Harmon Road
USACE Project Number SWF-2018-00481," prepared by Kimley-Horn and Associates,
Inc., dated September 5, 2019. The permittee shall implement the mitigation plan prior
to any ground disturbing activities within waters of the United States. Completion of all
elements of this mitigation plan is a requirement of this permit.
-2-
2) The permittee shall debit the appropriate number and type of credits from any U.S. Army
Corps of Engineer, Fort Worth District (USACE) approved mitigation bank(s) having a
service area encompassing the project site. The debit(s) shall compensate off-site for
unavoidable adverse project impacts that would not be compensated for by on-site
mitigation and shall be calculated in accordance with the appropriate mitigation banking
instrument (MBI). The permittee shall identify the mitigation bank(s) selected for use,
calculate credits required and submit to the USACE for verification. Upon verification,
complete the mitigation bank transaction(s), and provide documentation to the USACE
that the transaction(s) occurred prior to any ground disturbing activities within waters of
the United States.
Failure to comply with these specifications and conditions invalidates the authorization and may
result in a violation of the Clean Water Act.
Our verification for the construction of this activity under this nationwide permit is valid until
March 18, 2022, unless prior to that date the nationwide permit is suspended, revoked, or
modified such that the activity would no longer comply with the terms and conditions of the
nationwide permit.on a regional or national basis. The USACE will issue a public notice'
announcing the changes when they occur. Furthermore, activities that have commenced, or are
under contract to commence, in reliance on a nationwide permit will remain authorized provided
the activity is completed within 12 months of the date of the nationwide permit's expiration,
modification, or revocation, unless discretionary authority has been exercised on a case-by-
case basis to modify, suspend, or revoke the authorization in accordance with 33 CFR 330.4(e)
and 33 CFR 330.5(c) or(d). Continued confirmation that an activity complies with the
specifications and conditions, and any changes to the nationwide permit, is the responsibility of
the permittee.
The USACE based this decision on a preliminary jurisdictional determination (PJD) that there
are waters of the United States on the project site. A PJD is not appealable. At any time you
have the right to request and obtain an Approved Jurisdictional Determination (AJD), which can
be appealed. If it is your intent to request an AJD, do not begin work until one is obtained.
Our review of this project also addressed its effects on threatened and endangered species.
Based on the information provided, we have determined this project will not affect any species
listed as threatened or endangered by the U.S. Fish and Wildlife Service within our permit area.
_However, please note you are responsible for meeting the requirements of General Condition
18 on endangered species.
The permittee must sign and submit to us the enclosed certification that the work, including
any proposed mitigation, was completed in compliance with the nationwide permit. The
permittee should submit the certification within 30 days of the completion of work.
This permit should not be considered as an approval of the design features of any activity
authorized or an implication that such construction is considered adequate for any purpose
intended. It does not authorize any damages to private property, invasion of private rights, or
any infringement of federal, state, or local laws or regulations.
-3-
Thank you for your interest in our nation's water resources. If you have any questions
concerning our regulatory program, please refer to our website at
http://www.swf.usace.army.mil/Missions/Regulatory or contact Mr. Frederick Land at the
address above or telephone (817) 886-1729.
Please help the regulatory program improve its service by completing the survey on the
following website: http://corpsmapu.usace.army.mil/cm_apex/f?p=regulatory_survey.
Sincerely,
Stephen L Brooks
Chief, Regulatory Division
Enclosure
Copy Furnished: (Without Enclosures)
Larry Clendenen
Kimley-Horn and Associates, Inc.
13455 Noel Road
Two Galleria Office Tower, Suite 700
Dallas, Texas 76207