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Home My WebLink AboutContract 44666 (2)CRYSECRETARY CONTRACT NO. ., 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 four and four -tenths (4.4) 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, four and four - tenths (4.4) Credits. 2. Payment for Credits. In consideration of the delivery of the Credits, the Purchaser agrees to pay to TRMB the sum of Sixty Nine Thousand and Three Hundred Dollars and no cents ($69,300.00) for all of the Credits purchased pursuant to this Agreement. RECEIVED JUL 2 5 2015 1 OFFICIAL RECORD CITY SECRETARY I FE r41173,THI TX 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. 2 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. 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. 3 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] 4 IN WITNESS WHEREOF, the Purchaser and TRMB have executed this Agreement effective for all purposes as of the --';( day of J,,i I \! THE PURCHASER: CITY OF FORT WORTH, TEXAS a Texas Municipality By: 71MA•fdO Fernando Costa Its: Assistant City Manager RECOMMENDED: By: Doug s W. Wiersig, PE Its: Direc or, Department of Transportation/Public Works APPROVED AS TO FORM AND LEGALITY: By: Douglas W. Black Its: Assistant City Attorney ATTEST: By: Miry J. Kayser Its: ' City Secretary M&C: C — Z‘ 3 / $ Date: 1--/ 6- !3 Attn: Rick Shaffer, PE Storm Water Management Division 1000 Throckmorton Street Fort Worth, Texas 76102 Telephone: (817) 392-6821 Facsimile: (817) 392-2330 , 2013. 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: ChoyLeng T. Scott Its: CFO 5956 Sherry Lane, Suite 1810 Dallas, Texas 75225 Telephone: Facsimile: Tax ID #: ,a'0"p'i)�1Li 214/891-0920 214/891-9855 20-2137693 4 Q•�0�0 ‹. tok o000000000 5 cF F1='ICll, L RECORD CITY SECRET/Tr FT. fftin TN, ti City of Fort Worth, Texas Mayor and Council Communication :; :. CQUNCIL ACTION:, Approyed;on 0.020.13 • .......� amr.Lrr.—�.+asu.�u��,t,�.:•s:Y:e�•aa..,»....,u....::��.�»��.a.;�.........M.,,•�:.�x�sz+s.anw.•xx�.v:�mrwmnruuraiss•.:ac:ac^:.�•^s:•_:m.._::�r•-�^••.��*�� CONTINUED FROM A PREVIOUS WEEK DATE: Tuesday, July 09, 2013 REFERENCE NO.: C-26318 LOG NAME: 20SW 00100 TRINITY BLVD MITIGATION SUBJECT: Authorize Credit Sales Agreement with Trinity River Mitigation Bank, LTD, in the Amount of $69,300.00 for the Mitigation of Waters of the United States Associated with the 9700 Trinity Boulevard Culvert Improvements Project (COUNCIL DISTRICT 5) RECOMMENDATION: It is recommended that the City Council authorize a credit sales Agreement with Trinity River Mitigation Bank, LTD, in the amount of $69,300.00 for the mitigation of Waters of the United States • associated with the 9700 Trinity Boulevard Culvert 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 (USAGE) for construction of the 9700 Trinity Boulevard Culvert Improvements Project. The project is necessary to help reduce hazardous road overtopping on Trinity Boulevard during severe rains but will also lead to the discharge of dredge and fill material into the creek 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 purchase an appropriate number and type of mitigation credits from any USACE, Fort Worth District -approved, mitigation bank. 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 $69,300.00. 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 for the goal for MBE/SBE subcontracting requirements was requested by the Transportation and Public Works Department and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the purchase of goods or services from sources where subcontracting or supplier opportunities are negligible. This project is located in COUNCIL DISTRICT 5, Mapco 67B and 67C. 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. Logname: 20SW 00100 TRINITY BLVD MITIGATION Page 1 of 2 FUND CENTERS: TO Fund/Account/Centers FROM Fund/AccountlCenters P227 539120 205280010041 $69.300.00 CERTIFICATIONS: Submitted for Citv Manaaer's Office bv: Oriainatina Deoartment Head: Additional Information Contact: Fernando Costa (6122) Douglas W. Wiersig (7801) Rick Shaffer (6821) ATTACHMENTS 1. 00100 MWBE Waiver.odf (CFW Internal) 2. 140. 20SW 00100 Trinity Blvd Mitiaation(Funds verification 6-7-13 JCT).docx (CFW Internal) 3: FAR-00100-00016-Mitigation Credits.Ddf (CFW Internal) 4. TRINITY BLVD MITIGATION 00100.odf (Public) Logname: 20SW 00100 TRINITY BLVD MITIGATION Page 2 of 2