HomeMy WebLinkAboutContract 44106 (2)tirry secRErARy
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CREDIT SALES AGREEMENT
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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 three and five -tenths (3.5) 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 TR'VIB, three and five -
tenths (3.5) Credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the
Purchaser agrees to pay to TRMB the sum of Fifty Two Thousand and Five Hundred Dollars
($52,500) for all of the Credits purchased pursuant to this Agreement.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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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;
(11) 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 Purchases 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. Attornev'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]
IN WITNESS WHEREOF, the Purchaser and Thave executed this
Agreement effective for all purposes as of the /51t day of
THE PURCHASER:
CITY OF FORT WORTH, TEXAS
a Texas Municipality
By:
Fernando Costa
Its: Assistant City Manager
RECOMMENDED:
CASs
By:
Dougla$)W. Wiersig, PE
Its: Director, Department of
Transportation/Public Works
APPROVED AS TO FORM AND
LEGALITY:
By:
Douglas W. Black
Its: Assistant City Attorney
ATTEST:
By:
Mary J. Kayit
�
Its: City Secretary
M&C: 14-ff
Date: i a —I has--
,201.k
TRMB:
TRINITY RIVER MITIGATION BANK, L.P.
a Texas limited partnership
By: Wetland Partners, L.P.
Its: General Partner
By: WF Investments, Inc.
Its: General Partner
By:
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Its: Rrss.iklent CA,
5956 Sherry Lane, Suite 1810
Dallas, Texas 75225
Telephone: 214/891-0920
Facsimile: 214/891-9855
Tax ID #: 20-2137693
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Attn: Vibhuti Pandey
Stormwater - Transportation & Public Works
900 Monroe Street, Suite 500
Fort Worth, TX 76102
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
M&C Review Page 1 of 2
CITY COUNCIL AGENDA
Official site of the City of Fort Worth, Texas
FORT WORTH
emir
COUNCIL ACTION: Approved on 12/11/2012
DATE:
CODE:
SUHJI.CT:
12/11/2012 REFERENCE
NO.:
C TYPE:
*C-25998 LOG NAME: 20SW 01604_LAKE CREST
DRAINAGE IMPROVEMENTS
CONSENT PUBLIC NO
HEARING:
Authorize Credit Sales Agreement with Trinity River Mitigation Bank, LTD, in the Amount
of $52,500.00 for the Mitigation of Waters of the United States, Associated with the Lake
Crest Drainage Improvements Project (COUNCIL DISTRICT 7)
RECOMMENDATION:
It is recommended that the City Council authorize a credit sales Agreement with Trinity River
Mitigation Bank, LTD, in the amount of $52,500.00 for the mitigation of Waters of the United States,
associated with the Lake Crest Drainage Improvements Project.
DISCUSSION:
The purchase of mitigation credits recommended by this Mayor and Council Communication will meet
the requirements of the U.S. Army Corps of Engineers (USACE) for construction of the Lake Crest
Drainage Improvements Project. The project will result in the discharge of dredge and fill material
during construction. USACE has determined that this will constitute adverse impact to the Waters of
the United States on the project site. As such, the project is subject to the Clean Water Act and
USACE jurisdiction.
Per the terms of the USACE permit for the project, the City of Fort Worth is required to provide
compensatory mitigation for the unavoidable adverse impacts. The City may provide restoration
through the planting of trees, shrubs, and native grasses or may purchase an appropriate number
and type of mitigation credits from any USACE, Fort Worth District -approved, mitigation bank. Staff
has determined that purchasing mitigation credits will be more cost-effective than mitigating through
vegetation.
The Trinity River Mitigation Bank, LTD, has been identified as the most economical USACE -
approved mitigation bank and has quoted the cost of the required mitigation credits to be $52,500.00.
Staff considers the cost of mitigation credits to be fair and reasonable.
A waiver for the goal for MBE/SBE subcontracting requirements was requested by the Transportation
and Public Works Department and approved by the M/WBE Office because the purchase of goods
and services is from sources where subcontracting or supplier opportunities are negligible.
This project is located in COUNCIL DISTRICT 7, Mapsco 32V and 32Z.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current capital
budget, as appropriated, of the Stormwater Capital Projects Bond Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
P227 539120 207280160441 $52.500.00
http://fortworthtexas.gov/council_packet/mc_review.asp?ID=17705&councildate=12/11/2012 12/12/2012
M&C Review Page 2 of 2
Submifted for City Manaaer's Office bv: Fernando Costa (6122)
0rriginaiina 9enar#ment Head: Douglas W. Wiersig (7801)
Additional Information Contact: Vibhuti Pandey (2424)
ATTACHMENTS
01604 Lake Crest Drainage Improvement Map.pdf
http://fortworthtexas.gov/council packet/mc_review.asp?ID=17705&councildate=12/11/2012 12/12/2012