HomeMy WebLinkAboutContract 44436 (2)- - - - -- ;�•:.,�.
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CREDIT SALES AGREEMENT
This Credit Sa1es Agreement (the "Agreement") is entered into b� and between Triniry
River Mitigation Bank, L.P., a Texas limited partnership ("TRMB"), and City of Fort Worth, a
Texas municipalit� (the "Purchaser").
RECITALS:
A. Pursuarit 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.5. Army Corp of Engineers ("USACE"), Wetland Partners, as Sponsor
of the Bank, and West Fork established the Trinity River Mitigation Bank under Pertnit 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 tive ajld five-tenths (5,5) 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 TRMB, tive and five-
tenths (5.5) Credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the
Ptirchaser agrees to pay to TRMB the sum of Ninety Six Thousand and T��vo Hundred Fifty
Dollars and no cenls ($)6,250.00) for all of the Credits purchased pursuant to this Agreement.
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QFFICIAL REC�R��
CITIf S��RE�W��
;�� �R�,!�.��� �P�
R�CElUED M�Y 14 ����
3, Rcpres�nts�titrns.
(a) l��t�resent�ttions af �'�IvI�:
following:
�'1�1�I� fepresents to the Purchaser th�
(i} '1'R1�I� is ai'�'e�as �itriite� pa�tnership, duly formed and �validly e�istin�;
(ii) the Credits are free and clea�r of �Il Ii�ns; pl�dges, sect�riry intei�ests or othet
encumbrances other than ttiose impos�d b� the MBY;
(�ii) mKM� has dt�ly t�lce� al� action n�c�ss�iy to at�thorize its ex�ct�tion anc� d��ivery
of this �greement and to attthorize th� consttmmation �nd perfot�marice of the tra�s�ctions
contemplated by this Agreern�nt; �nd
(i�) this Agreetrient; and �11 vtl�er agreemer►ts execttted in conn�ction �vith this
�greement; �re the legal; �a�lid �nd t�it��ing obligations of T�ZIVIB, enfoxceabl� in �ccord�tice
With their terms except �s sucli enforcement m�y lie lirtiited b� ba�nkruptcy, it�sol�ency o� similar
laws of gerieral app�ication rela�ting to the ��forceinet�t of c�editors' rights.
(v) `�'l�e Barik is op�rated; �d vvill Continue to be operated, in accorda�t�ce r�ith a11
applicable USACE laws, regul�tioris; orc�ers, perinit requirements, agreements �tic� gt�idanc�;
including, wifliot�t li�nitatiofl, tlie I�IB� and I�ertriit Nu�nber 199&0037"0,
Other than a�s expressly set forth �bo�e, TR�1� does not make any representations ot
warranties to 1'urchaser, iriclt�c�ing; �i�vithot�t limitatio�, the st�itabiliry of the Credits or �vhether or
not the Credits �vi�l satisfy; in Whale a� part, a�ny mitig�ttion obligation of t�e Pttt�chas�r:
{b) Representations af Purc�aser: The I'urchaser represents to `I'RMB the
fallowing:
(i) the Purchaser is a municipality in the state of �'exas, dul� formed and validly
e�istirig;
(ii} the �urchaser ��s dal� talcen a�l action necessar� to �uthorizc its execution and
deli�ery of this Agreement and to ��ttioriz� the consttmrnatio� ancl pet`formance of th�
transa�etions eontemplated b� this Agre�ment; and
(iii) this Agreement, a�nd all other agreeme�ts executed in connectio� with this
Agreement, are the l�gal; �a�lid a�nd binc�ing otiligatia�s of the �'t�rchaser; enforc�abl� in
a�ccordance r�vith their t�rms except as suc1� enforcemerit ma� be limited b� bariktt�ptcy;
insc�lvericy or similar laws of geri�ra�1 applic�tion relati�g to t�e enforcenient of creditors' rights:
Other than as expressly set forth a�ove, Purchaser does not rriake any rept��seritations or
vvarrat�ties ta T�IB:
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4. Confide�tia�lit�y. Th� I��rchaser sf�all keep �bsol�teiy con�dential t�se
e�cist�n�� of' this t�greement, its ternist a�nd a1[ ir�fo�nation regarding the 1VI�1, �'�M�,
the Cr�dits �nd the �atYk that the F'urch�set learned; vvas pravidect or wa�s otherwise
dis�losed to P't�rcl�aser it� connection with the negotiationf e��cution and consumfnation
of this ,�greer�ent; e�ccept for the disclosure of thase itcros that �re �lread� in the public
dorn�in, �here disclas�re is o��erwise required b� law, ox tf�e disclosure 1s �p�iroved b�
TR�1� in writing,
�. Noti��s, Natic�s or other communicatiot�s iinder t1�is Agreetnent by either
�a�ty t� the other sh�11 b� given or cteli�e�ed sufficienft� if they �re �� t�vriting and are
deli�erecl personally, or are dispatched b� regis�ere�c� or certi�ec� mail; postage pre-paid,
o� faesimile, addr�ssed or deli�ered ta the other pa�rty as set fort� on the sigr�atare pages
to tl�is �4greetner�t,
6. �ind�ng Ag�eem�nt, Assig��n�nt: This �gteeme�t, and its ben�ts and
obligations; sh�ll inure to ancl birid the respectiv� heirs; executo�s, admitiistrators;
st�ccessors arid a�ssigns of the parties hereto, �'tiis �greeinent may not be assignec� by
TRI�1B or th� �'urchase� vvitho�t the i�ritten consent af the otl�er:
7, Iie�t�ict�on un �ee�rda�tiorir Neither this �greem�nt nor any notice;
m�morandutri �or notatio� thereof sh�ll Ue recorded or d'isclosed by �'T�1� or tfie
P't�rch�ser it� an� pt��lic records or in an� dact�merit rr�ad� pitblic.
8, �tto�ney's Fees: If tliere is a dispt�te betvve�� th� �'urehaser and �'�I�
under this Agreement, the pre�ailing parry shall tie entitled to recaver aI1 costs incurred;
inclt�ding reasonable attorney's fees, par�lega�I's fees and appellate and past judgment
praceedirigs arid all casts thereof.
9. �3r�a�l �g�e�m��t: This Agreement etri�odies tl�e �v�ale agreement of the
Purchaser a�nc� TI�1VI�. This Agreement 5hall supersede all pre�io�t�s communic�tions,
discussions, represeritations; �d�eriisernents; proposals or agreetrients �ither verbal or
written, bet�+�een the I'u�rchaser and TI�IB not othei-wise conta�ined ir� this Agreernent:
1 a, C�ptior�s. '�'he captions in tliis Agreement are included for convertience
r�nl� and sh�11 be gi�en no legal effect �vhatsoe�er:
11. Mot�if�cation, This Agreernent ma� �ot b� modified exeept b� written
instrument executed 6� both the Purehaser aind �'f�B,
12. Choi�e of La�vv�: Ven�e: `Y'his Agreernent sh�ll be governeci by tf�e lar�vs
of th� St�te of 'Y'�xas, and the �venue for all disputes with respect to tHis Agre�met�t shall
l�e in Da�llas, ballas County, �'exas.
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13. g�rtia�l Yt��va�Yidity. Shot�ld a�� part of this �greemerit iie rendered voici,
invalid or unenforc�al�le by an� cot�rt af ��t� fot �ny reason, s�eh a cieterrniriafion sha11
rrot r�nd�r void, inva�lid or t�n�nf�rc�at�l� an� othet part of this �greement, prvvide�c�;
hvwever, that the �arties r��eiv� the fiull Considerattivn ��rgained for hereunder:
14. Ca�u�ter��irts. �'his t�gre�irie�it tnay be execute� i� mt�Iti�ile
cdunterparts, eaeh of �vhieh sha�ll co�stitt�te a�tY origiria�l; ai�d a1� of which sh�11 cons�itt�te
on� a�nd th� same agreem�nt.
[the remalnder of this page it�tentionally left Ii�a�IcJ
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IN WITNESS WHEREO�', the Purchaser, and TRMB have ex�cuted this
Agreement effective for all purposes as of the �Lday of "� , 2013.
THE PURCHASER;
CITY O�' FORT WOItTH, TEXAS
a Texas Municipality
By: l.�ii�--�
Fernaneic> Costa
Its: Assistant City Manager
RECOMMENDED:
�?�
By:
�•�
Dou�l�W. Wiersig, PE
Its; Director, Department of
Transportatioi�/Public Works
APPROVEU AS Tn FORM AND
L�CALITY:
-�
� ' �
By: ' i
Douglas W. B ac
Its: Assistant City Attorney
ATTEST;
By: /
ary J.
Its: City Se
M&C:
Date:
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Attn; Linda S. Young, P�
Storin Water Managemeiit Division
] 000 Throckmorton Street
Fort Worth, Texas 76102
Telephone: (S 17) 392-2485
Facsimile: (817) 392-2330
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TRMB:
TRINYTY RIVER l�1ITIGATION BANK, L.1',
a Texas limited partnership
IBts:.
$�:
Its:
Wetland Pariners, �,.P.
General �'artner
WF Investments, Inc.
General Partner
By:
Wallace L. Hall; Jr.
Its: President
5956 Sherry Lane, Suite 1810
Dallas, Texas 75225
Telephone:
Facsimile:
Tax ID #:
214/891-0920
214/$91-9855
20-2137693
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Cety of Fort Worth, Texas
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COUNCIL ACTION: Approved on 4/9/2013
DATE: Tuesday, Apri109, 2013 REFERENCE NO.: **C-26193
LOG NAME: 20SW 00138 EAST ROSEDALE MITIGATION
SUBJECT:
Authorize Credit Sales Agreement with Trinity River Mitigation Bank, LTD, in the Amount of $96,250.00 for
the Mitigation of Waters of the United States Associated with Stormwater Improvements on the East Rosedale
IH35 W to US 287 Project (COUNCII, DISTRICT 8)
RECOMMENDATION:
It is recommended that the City Council authorize a credit sales Agreement with Trinity River Mitigation
Bank, LTD, in the amount of $96,250.00 for the mitigation of Waters of the United States associated with
Stormwater improvements on the East Rosedale IH35 W to US 287 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 stormwater improvements
on the East Rosedale (IH35 W to US 287) 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 $96,250.00. Staff considers
the cost of mitigation credits to be fair and reasonable. Funding for this project is being provided from the
revenue bonds in the Stormwater Capital Projects Bond Fund.
M/WBE Office: A waiver of the goal for MBE/SBE subcontracting requirements was requested by the
Department and approved by the M/WBE Office, in accordance with the M{WBE Ordinance, because the
purchase of goods or services is from source(s) where subcontracting or supplier opportunities are negligible.
This project is located in COUNCIL DISTRICT 8, Mapsco 77L.
FISCAL INFORMATION:
The Financial Management Services Director certifies that funds are available in the current capital budget,
as appropriated, of the Stormwater Capital Projects Bond Fund.
FUND CENTERS:
TO Fund/Account/Centers
CERTIFICATIONS:
Submitted for City Manager's Office b�
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
FROM FundlAccount/Centers
P227 539120 208280013841
Fernando Costa (6122)
Douglas W. Wiersig (7801)
Rick Shaffer (6821)
��•• 1 11
l. 107. 20SW 00138 East Rosedale MitigationlFAR revenue verification)(JCT 3-25-2013).docx
2. East Rosedale 00138.�df
3. East Rosedale Waiver.pdf
4. FAR-00138-00037-Miti atg ion•pdf