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Home My WebLink AboutContract 41871 (2)CITY SECRETARY CONTRACT NO. 4101 � 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 Forth 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 1.1 credits (the "Credits") to satisfy the Purchaser's mitigation obligation for 0.390 acres of permanent impact to medium quality wetland habitat. The Purchaser's Permit Number is SWF-2010-00341. 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, 1.1 credits (the "Credits"). Payment for Credits. In consideration of the delivery of the Credits, the Purchaser agrees to pay to Wetlands the sum of Thirteen Thousand Two Hundred Dollars and No/100 ($13,200) for all of the Credits purchased pursuant to this Agreement. OFFICIAL RECORD CITY SECRETARY FT. WORTH, Tk 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.) 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 tends except as such enforcement may be limited by bankruptcy, insolvency or similar laws of general application relating to the enforcement of creditors' rights; and (iv.) 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 teims 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 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. 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. 8. 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. 9. Captions. The captions in this Agreement are included for convenience only and shall be given no legal effect whatsoever. 10. Modification. This Agreement may not be modified except by written instrument executed by both the Purchaser and Wetlands. 11. 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. 12. 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. 13. 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) IN WITNESS WHEREOF, the Purchaser and Wetlands have executed this Agreement effective for all purposes as of the I day of vLvVL� 2011. Attested by: M�ttv I d acI C AFFICIA� R6COR� CITY SECRET TX WETLANDS: WETLANDS MANAGEMENT, L.P. Address: 2101 Cedar Springs Road Suite 1600 Dallas, TX 75201 Telephone: 214-849-9144 THE PURCHASER: City of Fort Worth By��E'Gs•�w..� C.sAG_� Fernando Costa Assistant City Manager Address: 1000 Throckmorton Street 2°d Floor Fort Worth, TX 76102 Telephone: (817) 392-612) AFC•: 'I} aS?',=� ., Ass (si ei' �• ..,1%l. 21 �}° ;t AND LEGALITY: 5 Fund Appropriation Requests Page 1 of 2 General Fund Appropriation Requests Project Number: 00997 Project Name: Summer Creek Rd - Risinger to McPherson Title: FAR-00006 -Mitigation Bank and Cleanup Creator: Pat Buckley Status: Pending Creation Date: 06/04/2011 05:25 PM Local (GMT-6) Record Number: FAR-00006 Target Completion Date: Amount Requested: 29,400.00 Effective Date: Fund Appropriation Request Internal FAR Data Type Code: 2 Type: =und.Appropriation_Request_Information__. ____ __ __ _. _� _. ____ __ ___ __—_ ___ _ _ _ ___ .__ _ _ . _.___ _ __ . __,_.______ _ Remarks: Adjusting funding to the right accounts. Funding Mitigation bank agreements for $$29,400.00 Explanation: Comments: We are purchasing from two mitigation banks, Wetlands Management, LP ($13200.00) and Trinity River Mitgation Bank ($16,200.00) credits for distribuing wetlands for this project. These will be chaged to Code 41 -Land Costs. We are also adjusting funding to existing accounts. nformation _ M&C Required?: No M&C Number: c. i>7 Task Details From: To: Cc: Sent For: M&C Date: Malena Doty 2 Review Workflow Progress Journal Voucher Required?: No Description 3 (Journal Voucher No.): Task Due Date: Task Status Not Applicable View Only Task Notes (0) Step Name � Assignee � Company � Status � Action (Completion Date 1 Creation Pat Buckley CFW Completed Send 06/04/2011 05:25 PM Local (GMT-6) 2 Review Malena Doty _ CFW Not Started _', Line Item 7 Item(s) https ://u24. skire. com/bp/studio/print/open?id=22419&model=ufar&process_id=119195 5 &b... 6/4/2011 Fund Appropriation Requests Page 2 of 2 C204-23-20- 201239990100 City 20- 206230099771 485208- 531350- 201239990100 C204 BONDS- A- 2008C I P- STR E ET- STREET- C204-485208- City Utility STREET- C204-541200- �06 STREET- 201239990100Cost 20_72--10,000.00206230099771 C204-23-20- 485208- 541200- 201239990100 C204 BONDS- A- 2008CIP- STREET- STREET- C204-485208- Preliminary STREET- C204-531200- �05 STREET- Surve 23-51--25,000.00206230099751 C204-23-20- 201239990100 Consultant 20- 485208- 531200- 201239990100 C204 BONDS- A- 2008CIP- STREET- STREET- C204-485208- Land STREET- C204-531350- 004 STREET- Negotiations 23-42- 6,000.00206230099742 C204-23-20- 201239990100 City Staff 20- 485208- 531350- 201239990100 C204 BONDS- A- 2008CIP- STREET- STREET- C204-485208- Design City STREET- C204-531350- 003 STREET- 201239990100Staff 23-30- 33,000.00206230099730 C204-23-20- 20- 485208- 531350- 201239990100 C204 BONDS- A- 2008C I P- STR E ET- STREET- C204-485208- Design STREET- C204-511010- 002 STREET- TPW 23-30--8,000.00206230099730 C204-23-20- 201239990100 Salaries 20- 485208- 511010- 201239990100 C204 BONDS- A- 2008CIP- STREET- STREET- C204-485208- ROW . STREET- 23-41- 29,400.00 C204-541100- 001 STREET- 201239990100 Land Costs 206230099741 C204-23-20- 20- 485208- 541100- 201239990100 C204 Attachments (0) Linked Records(0) Total Amount: $ 29,400.00 Linked Mail (0) https://u24. skire. com/bp/studio/print/open?id=22419&model=ufar&process_id=1191955&b... 6/4/2011