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HomeMy WebLinkAboutContract 40614CREDIT SALES AGREEMENT CITY SECRETARY LJ CXa , 1 CONTRACTNO. I l"1 This Credit Sales Agreement (the "Agreement") is entered into by and between South Forks Trinity River Mitigation Group 1, LP ., a Texas limited partnership ("SFTRMG1 "), and the City of Fort Worth , Texas , a Municipal Corporation (the "Purchaser"). RECITALS: A. Pursuant to that certain Mitigation Banking Instrument Agreement dated December 2006 (the "MBI") between , among others , SFTRMG1 ., a Texas limited partnership , and South Forks Trinity River Mitigation Bank, Inc., a Texas corporation, (SFTRMB-lnc .) as the sponsor, and the U .S . Army Corp of Engineers ("USACE"), SFTRMB-lnc., as Sponsor of the Bank , established the South Forks Trinity River Mitigation Bank (SFTRMB) under Permit Number 200300558 (the "Bank"). B. Pursuant to the terms of the MBI , SFTRMG1 , and SFTRMB-lnc., 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 "). 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 one and one tenth (1 .1) 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 SFTRMB agree as follows : 1. Sale of the Credits . SFTRMG 1 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 SFTRMG1 , one and one tenth (1 .1) Credits. Upon full and complete execution of the Agreement and payment of the Credits as described below , Purchaser shall submit proof of purchase and transfer of ownership to the USACE , in a form which is sufficient to the USACE. Purchaser agrees to submit further documents to USACE and the Purchaser as may be reasonably necessary to show Purchaser's ownership of the Credits purchased . 2 . Payment for Credits. In consideration of the delivery of the Credits , the Purchaser agrees to pay to SFTRMG1 the sum of twenty thousand eight hundred eighty eight dollars ($20,888 .00) for all of the Credits purchased pursuant to this Agreement. 3 . Representations . (a) Representations of SFTRMG1. SFTRMG1 represents to the Purchaser the following : (i) the Credits are free and clear of all liens , pledges , security interes s-o ot r encumbrances other than those imposed by the MBI ; OFFICIAL RECORD RECEIVED JUL 3 8 10,0 i RECEIVED JUL 2 9 2010 07 -16 -1 0 A09 :38 I N CITY SECRETARY FT. WORTH , TX (ii) SFTRMG1 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 SFTRMB , 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. (iv) 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 200300558 . (v) SFTRMG1 represents and/or warrants to Purchaser that it is aware USACE has required that the Purchaser provide off-site wetland mitigation to compensate for impacts to USACE jurisdictional wetlands and that SFTRMG1 is not aware of any circumstance , regulation or prohibition for Purchaser's use of the Credits to satisfy, in whole or part, any mitigation obligation of the Purchaser. (b) Representations of Purchaser. The Purchaser represents to SFTRMG1 the following : (i) the Purchaser is a municipal corporation, 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 SFTRMG1 . 4 . 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. 5. 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 SFTRMG1 or the Purchaser without the written consent of the other. 6 . Attorney's Fees. If there is a dispute between the Purchaser and SFTRMG1 under this Agreement , the prevailing party shall be entitled to recover all costs incurred , includinq OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX reasonable attorney 's fees , paralegal's fees and appellate and post-judgment proceedings and all costs thereof. 7 . Final Agreement. This Agreement embodies the whole agreement of the Purchaser and SFTRMG1 . This Agreement shall supersede all previous communications , discussions , representations, advertisements, proposals or agreements either verbal or written , between the Purchaser and SFTRMG1 not otherwise contained in this Agreement. 8. Captions . The captions in this Agreement are included for convenience only and shall be given no legal effect whatsoever. 9. Modification . This Agreement may not be modified except by written instrument executed by both the Purchaser and SFTRMG1 . 10 . 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 Tarrant County , Texas . 11 . 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. 12 . 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] Off\C\At. RECORD C\iY SECRETARY fl. WORTH, lX ,-·. IN WITNESS WHEREO~~he Purch~r and SFTRMB have executed th is Agreement effective for all purposes as of th!-L day of 1/1 , 2010 . SFTRMG1: South Forks Trinity River Mitigation Group 1, LP a Texas limited partnership By : South Forks Trinity River Mitigation Bank , Inc . Its : General Part r By : Its : Address : 1150 Highway 205 South Rockwall , Texas 75032 Telephone : 972/771 .3738 Facsimile : 972/771.6881 THE PURCHASER: City of Fort Worth , Texas a Municipal Corporation By : Fernando Costa Its : Assistant City Manager Address: 1000 Throckmorton Fort Worth , Texas 76102 817 .392 .8042 Ass istant City Attorney NO M&C REQUIRED OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX INTEROFFICE MEMO TO: Mike Weiss , Transportation and Public Works Department FROM: Allison Tidwell , City Secretary's Office DATE: July 19 , 2010 SUBJECT: AGREEMENT FOR WETLANDS MITIGATION FOR GOLDEN TRIANGLE BOULEVARD FROM IH-35W TO US 377 These documents are being forwarded to you for original signatures from the South Forks Trinity River Mitigation Group 1, L.P. All signed copies of the contract must be returned with original signatures for final processing. Failure to return the documents will delay the final processing of the contract. Once we have received all of the documents , we will assign a contract number. Thank you in advance for your cooperation. If you have any questions, please call me at 817-392-6090. Attached: 3 sets DEPARTMENT OF THE AR.t'1Y FORT WORTH DISTR1CT, CORPS OF ENGINEERS P.O. BOX 17300 FORT WORTH, TEXAS 76102-0300 June 30, 2010 Planning, Environmental, and Regulatory Division Regulatory Branch SUBJECT: Project Number SWF-2010-00235, Widening of Golden Triangle Boulevard at Interstate 35W Mr. Mike Weiss City of Fort Worth 1000 Throckmorton Street Fort Worth, TX 76102 Dear Mr. Weiss: Thank you for your letter received May 17, 2010, and subsequent submittal dated June 24, 2010, concerning a proposal by the City of Fort Worth to widen Golden Triangle Boulevard from two lanes to four lanes from Interstate Highway 35W to U.S. Highway 377, City of Fort Worth, Tarrant County, Texas. This project has been assigned Project Number SWF-2010-00235. 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 your 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 and/or Section 10. The USACE based this decision on a preliminary jurisdictional determination that there are waters of the United States on the project site. We have reviewed this project under the pre-construction notification procedures of Nationwide Permit General Condition 27 (Federal Register, Vol. 72, No. 47, Monday, March 12, 2007, and corrections in Federal Register Vol. 72, No. 99, Tuesday, May 8, 2007). We have determined this project is authorized by Nationwide Permit 14, Linear Transportation Projects. To use this permit, the person responsible for the project must ensure the work is in compliance with the specifications and conditions listed on the enclosure and the following special condition. 1. The permittee shall debit 1.1 credits from the South Forks Trinity River Mitigation Bank in compliance with the provisions of the "Mitigation Banking Instrument, South Forks Trinity River Mitigation Bank, Ellis County, Texas," dated July 2006. This debit shall compensate off- site for unavoidable adverse project impacts that would not be compensated for by on-site mitigation. The permittee shall complete the mitigation bank transaction and provide -2- documentation to the USACE that the transaction has occurred prior to commencing any ground- disturbing activity within waters of the United States. Failure to comply with these specifications and conditions invalidates the authorization and may result in a violation. Our verification for the construction of this activity under this nationwide permit is valid until March 18, 2012, 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). Our review of this project also addressed its effects on threatened and endangered species. Based on the information provided, we have determined that 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 that you are responsible for meeting the requirements of General Condition 17 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 the purpose intended. It does not authorize any damage to private property, invasion of property rights, or any infringement of federal, state, or local laws or regulations. 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/regulatory or contact Mr. Wayne Lea at the address above or telephone (817) 886-1732. Please help the Regulatory Program improve its service by completing the survey on the following website: http://per2.nwp.usace.army.mil/survey.htm1. Stephen L Brooks Chief, Regulatory Branch Enclosures PERMIT COMPLIANCE CERTIFICATION U.S. Army Corps of Engineers Project Number: Permit Number: Name of Permittee: Date of Issuance: Upon completion of the activity authorized by this permit and any mitigation required by the permit , sign this certification and return it to the following address: Regulatory Branch CESWF-PER-R U.S . Army Corps of Engineers P.O. Box 17300 Fort Worth, Texas 76102-0300 Please note that your permitted activity is subject to a compliance inspection by a U .S. Army Corps of Engineers representative. If you fail to comply with this permit you are subject to permit suspension, modification, or revocation. I hereby certify that the work authorized by the above referenced permit was completed in accordance with the terms and conditions of the said permit, and required mitigation was completed in accordance with the permit conditions. Signature of Permittee Date