HomeMy WebLinkAboutContract 61653CSC No. 61653
MITIGATION CREDIT SALES AGREEMENT
This Mitigation Credit Sales Agreement (the "Agreement") is entered into by and between Rockin'
Kon Chambers Creek LLC, a Texas limited liability company ("Seller"), and City of Foti Wo1ih, a Texas
home rule city (the "Purchaser").
RECITALS:
A.Pursuant to that ce1iain Mitigation Banking Instrument Agreement dated December 19, 2014
(the "MBI") between, among others, Seller and the U.S. Army Corps of Engineers ("USACE"), Seller, as
Sponsor, established the Rockin' Kon Chambers Creek Mitigation Bank under Perm it Number SWF-2012-
00323, which permit was issued effective February 20, 2015 (the "Bank").
B.Pursuant to the terms of the MBI, Seller is authorized to transfer to third parties mitigation
bank credits, as authorized by USA CE, to compensate for the loss of off-site aquatic resources.
C.Purchaser intends to improve, enhance or modify ce1iain real prope1iy (the "Property"), and
in conjunction with such activities, USACE has required that the Purchaser compensate for the loss of
certain aquatic resources.
D.The Purchaser desires to purchase 58.8 perennial, in-channel credits (the "Reserved Credits")
to satisfy Purchaser's mitigation obligations described in the Compensatory Mitigation Plan for Trinity
Trails East Phase IV and V, all in accordance with Permit Number SWF-2021-00483 (the "Mitigation
Obligation").
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration described in this Agreement, the receipt
and sufficiency of which are hereby acknowledged, Purchaser and Seller agree as follows:
1.Sale of the Reserved Credits. Upon receipt of the full Purchase Price (defined below),
Seller hereby agrees to sell and assign, and does hereby sell, assign, transfer and convey to Purchaser, and
Purchaser hereby agrees to purchase and accept, and does hereby purchase, accept, acquire and receive
from Seller, the Reserved Credits, in satisfaction of the Mitigation Obligation. In the event this Agreement
is not authorized by the Purchaser's governing body on or before July 1, 2024, this Agreement shall be
deemed null and void and of no force or effect, and neither Seller nor Purchaser shall have any obligation,
one to the other.
2.Payment for Reserved Credits. In consideration of the delivery and conveyance of the
Reserved Credits, the Purchaser agrees to pay to Seller the sum of One Hundred Thiiiy-Two Thousand
Three Hundred and No/00 Dollars ($132,300.00) for the Reserved Credits purchased pursuant to this
Agreement. The Purchase Price will be payable in cash upon execution hereof by Seller and Purchaser.
3.Representations.
(a)Representations of Seller. Seller represents to the Purchaser the following:
(i)Seller is a Texas limited liability company, duly formed and validly existing;
10500565 v2 (00560.00023.000) Trinity Trails East -Phase II
CPN: 101767
(ii) the Resecved Ccedits ace fi•ee and cleac of encumbrances, othec than those
imposed by the MBI;
(iii) Sellec has duly taken all action necessary to authorize its execution and
delivery of this Agreement and to authorize the consummation and perfotmance of the
transactions contemplated by this Agreement; and
(iv) this Agreement, and all othec agreements executed in connection with this
Agceement, ace the legal, valid and binding obligations of Seller, enfocceable in accordance
with their tecros, except as such enforcement may be limited by the rules and regulations of
the USACE, and applicable law.
(v) The Bank is operated, and will continue to be opecated, in accordance with
all applicable USACE laws, rules, regulations, orders, permit cequirements, agreements and
guidance, including, without limitation, the MBI and PermitNumber SWF-2012-00323.
Othec than as expressly set forth above, Seller does not make any representations or
warranties to Purchaser, including, without limitation, the suitability of the Resecved Credits
oc whethec or not the Reserved Credits will satisfy, in whole or part, the Mitigation
Obligation of Purchaser. Purchaser will cely on its sepacate peimit and authorization fi•om
the USACE to satisfy its Mitigation Obligation.
(b) Representations of Purchaser. "I�he Purchasec represents to Seller the following:
(i) the Purchasec is a Texas home cule city;
(ii) the Purchasec has duly taken or i s in the pcocess of taking all action necessary
to authorize its execution and delivery of this Agceement and to authorize the consummation
and perfoimance of the transactions contemplated by this Agceement; and
(iii) this Agreement, and all othec agreements executed in connection with this
Agceement, are the legal, valid and binding obligations of the Pucchaser, enfocceable in
accordance with theic tecros, except as such enforcement may be limited by applicable law.
Othec than as expressly set forth above, Purchasec does not make any representations
oc warranties to Seller.
4. Confidentialitv. Except as cequiced by applicable laws, the Purchaser shall keep absolutely
confidential the existence of this Agreement, its terms, and all information regarding the MBI, Seller, the
Reserved Credits and the Bank that the Purchasec learned, was provided or was otherwise disclosed to
Purchaser in connection with the negotiation, execution and consummation of this Agreement, except for
the disclosuce of those items that are already in the public domain, where disclosure is othecwise required
by law, oc the disclosure is approved by Seller in writing.
5. Notices. Notices or other communications under this Agreement by eithec party to the other
shall be given or delivered sufficiently if they are in writing and are deliveced personally, or ace dispatched
by registered or certified mail, postage pre-paid, or facsimile, addressed or delivered to the other party as
set f'orth on the signature pages to this Agreement.
10500565 v2 (00560.00023.000) Trinity Trails East - Phase iI
2 CPN: 101767
6. Bindin� Agreement; Assignment. This Agceement, and its benefits and obligations, shall
inure to and bind the respective heirs, executors, administrators, successois and assigns ofthe parties hereto.
This Agreement may not be assigned by Seller or the Purchaser without the written consent of the other.
7. Restriction on Recordation. Neither this Agreement nor any notice, memorandum noc
notation theceof shall be cecorded or disclosed by Seller oc 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 Seller under this
Agreement, the prevailing party shall be entitled to recover all costs incurred, including reasonable
attocneys' fees, paralegals' fees and appellate and post judgment proceedings and all costs thereof
9. Final Agreement. This Agreement embodies the entire agreement of the Purchaser and
Seller. This Agceement shall supecsede all previous communications, discussions, cepcesentations,
advei�tisements, proposals or agreements either vecbal oc written, between the Purchaser and Seller not
otherwise contained in this Agreement. The sale transaction contemplated by this Agreement is final, and
there shall be no cefunds once payment is made for the Reseived Ccedits issued heceunder.
10. Captions. The captions in this Agreement are included f'oc convenience only and shall be
given no legal effect whatsoevec.
11. Modification. This Agceement may not be modified except by wcitten instiument executed
by both the Purchasec and Seller.
12, Choice of Laws: Venue. This Agreement shall be governed by the laws of the State of
Texas, and the exclusive venue for all disputes with respect to this Agreement shall be in Dallas, Dallas
County, Texas.
13. Partial Invalidity. Should any pact of this Agreement be rendered void, invalid or
unenfocceable by any court of law foc any reason, such a detecmination shall not cendec void, invalid oc
unenforceable any othec part of this Agreement; provided, however, that the pai�ties receive the full
consideration bargained for hereundec.
14. Counteraarts. This Agreement may be executed in multiple countecpacts, each of which
shall constitute an original, and all of which shall constitute one and the same Agreement.
10500565 v2 (00560.00023.000) Trinity Trails East - Phase 11
3 CYN: 101767
EXECUTED and EFFECTIVE as of the date subscribed by the City's designated Assistant City Manager.
APPROVED: City of Fort Worth
Jesica McEachern Assistant City Manager
DATE:Jul8 ,2�0_2 _4 ___ _
APPROVAL RECOMMENDED:
� Ja<H2-&
Richard Zavala Director, Park & Recreation Depaitment
Contract Compliance Manager:
ROCKIN' K ON CHAMBERS CREEK LLC a Texas limited liability company
R.!WJYlf.�flJ� � f.2o��a�DT) Raymond J. Kane Manager
DATE: Jun 17, 2024
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SP -.. -
By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements.
Helen D. Florez Park Planner
APPROVED AS TO FORM AND LEGALITY:
Douglas Black (Jul 3, 202415:21 CDT)
Douglas Black Sr. City Attorney
ATTEST:
Jannette Goodall City Secretary 10500565 v2 (00560.00023.000) M&C: 24-0434
Date: 5/14/24 Trinity Trails East -Phase II CPN: 101767
City of Fort Worth,
Mayor and
DATE: 05/14/24
Texas
Council Communication
M&C FILE NUMBER: M&C 24-0434
LOG NAME: 80TRINITY TRAILS EAST- PHASE II
SUBJECT
(CD 5) Authorize Execution of a Contract with The Fain Group, Inc., in the Amount of $3,571,216.00 for the Construction of Trinity Trails East -
Phase II; Authorize Execution of Amendment No. 1 to the Interlocal Agreement with the City of Arlington, Texas to Accept Additional Funds of
$1,315,310.00 for Final Design and Engineering Services, and Increased Construction Costs Due to Material Cost Increases and General Inflation
Factors for Trinity Trails East - Phase II; Authorize the Execution of the Credit Purchase Agreement with Wild-TX Lands, LLC, Not to
Exceed $150,000.00, for the Purchase of Mitigation Credits from the U.S. Army Corps of Engineers; Authorize the Execution of the Credit
Purchase Agreement with Rockin' K on Chambers Creek, LLC, Not to Exceed $150,000.00, for the Purchase of Mitigation Credits from the U.S.
Army Corps of Engineers; Adopt the Appropriation Ordinance, and Amend the Fiscal Year 2024-2028 Capital Improvement Program
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize execution of a contract with The Fain Group, Inc., in the amount of $3,571,216.00 for the construction of Trinity Trails East - Phase II
(Trinity Trails Connection, City Project No. 101767);
2. Authorize execution of Amendment No. 1 to the Interlocal Agreement with the City of Arlington, Texas, (City Secretary Contract No. 55377) to
accept additional funds in an amount of $1,315,310.00;
3. Authorize the execution of the credit purchase agreement with Wild-TX Lands, LLC, not to exceed $150,000.00, for the purchase of
mitigation credits from the U.S. Army Corps of Engineers;
4. Authorize the execution of the credit purchase agreement with Rockin' K on Chambers Creek, LLC, not to exceed $150,000.00, for the
purchase of mitigation credits from the U.S. Army Corps of Engineers;
5. Adopt the appropriation ordinance increasing estimated receipts and appropriations in the Intergovernmental Contribution Fund in an
amount of $1,315,310.00 for Trinity Trails East - Phase II; and
6. Amend the Fiscal Years 2024-2028 Capital Improvement Program.
DISCUSSION:
The purpose of this Mayor antl Council Communication (M&C) is to authorize execution of a contract with The Fain Group, Inc., in the amount of
$3,571,216.00 for the construction of Trinity Trails East - Phase II; execute Amendment No. 1 to the Interlocal Agreement with the City of Arlington,
Texas; authorize execution of two Credit Purchase Agreements for the purchase of mitigation credits from the U.S. Army Corps of Engineers
(USACE); adopt the attached appropriation ordinance, and amend the Fiscal Years 2024-2028 Capital Improvement Program.
The project was posted on the City purchasing website and the Fort Worth Star-Telegram on December 7& 14, 2023. The following bids were
received on January 11, 2024:
Contractor Base Bid Base Bid Total Bid
Unit I Unit II
The Fain Group, Inc. $2,271,406.00 $1,299,810.00 $3,571,216.00
2L Construction, LLC $2,504,545.00 $1,623,642.00 $4,128,187.00
Cole Construction, Inc. $3,566,546.70 $2,067,011.71 $5,633,558.41
MW Panel Tech $3,943,340.50 $2,028,706.50 $5,972,047.00
McCarthy Building �3,856,042.78 $2,177,850.17 $6,033,892.95
Companies, Inc.
Reyes Group Ltd. $3,696,744.50 $2,425,067.50 $6,121,812.00
Urban Infraconstruction, �4,121,389.00 $2,165,130.00 $6,286,519.00
LLC
Base Bid Unit I items for Trinity Trails East - Phase II include clearing and grubbing, mid-block crossing, 54,000 square feet of trail, pedestrian
bridge construction and demolition of West Fork Trinity River Pedestrian Bridge. Base Bid Unit II items for Trinity Trails East - Phase II
include clearing and grubbing, 11,295 square feet of 12' trail, and pedestrian bridge construction.
Construction of this project is anticipated to begin May 2024 and completed in May 2025.
Funding for additional design and construction costs for Trinity Trails East - Phase II were not included in the Fiscal Years (FY) 2024-2028 Capital
Improvement Program due to increased costs from the original estimate.The action in this M&C will amend the FY2024-2028 Capital Improvement
Program as approved in connection with Ordinance 26453-09-2023.
Trinity Trails East - Phase II is estimated to increase the departmenYs annual maintenance by $35,172.00 beginning in FY2025. As of February,
2024, the cumulative total of all previously approved M&Cs increased the department's estimated annual maintenance by $462,691.00 beginning
in FY2025.
The Fain Group, Inc., is in compliance with the City's Business Equity Ordinance by committing to 11 % MWBE participation and documenting a
good faith effort. The Fain Group, Inc., identified several subcontracting and supplier opportunities. However, the firms contacted in the areas
identified did not respond or did not submit the lowest bids. The City's MWBE goal on this project is 18%.
On January 12, 2021 (M&C 21-0061) the City Council authorized the execution of an Interlocal Agreement with the City of Arlington, Texas for its
anticipated share of the design and construction costs in the amount of $647,682.50. This amendment to the ILA (City Secretary Contract
No. 55377) will increase the City of Arlington's contribution by $1,315,310.00 for a total amount of $1,962,992.50 to cover an increased share of
design and engineering services, and increased construction costs.
On August 23, 2023 USACE issued a Permit Compliance Certification for Trinity Trails East-Phase II of construction that included a compensatory
mitigation plan.
Wild-TX Lands, LLC, and Rockin' K on Chambers Creek, LLC, are established mitigation banks allowing for the sale of mitigation credits to third
parties in need of such mitigation, as approved by USACE. A Purchase of Mitigation Agreement, not to exceed $150,000.00 each, is needed for
the transfer of credits to compensate for the loss of aquatic resources.
Funding is budgeted in the 2018 Bond Program and Intergovernmental Contribution Funds for the purpose of funding the Trinity Trails East - Phase
II (Trinity Trails Connection).
Trinity Trails East- Phase II located in COUNCIL DISTRICT 5.
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital budget, as appropriated, in the 2018 Bond Program and
Intergovernmental Contribution Funds for the Trinity Trails Connection project and upon approval of the above recommendations, execution of the
contract & interlocal agreement, and adoption of the attached appropriation ordinance, funds will be deposited into the Intergovernmental
Contribution Fund. The Park & Recreation Department (and Financial Management Services) is responsible for the collection and deposit of
funds due to the City. Prior to any expense being incurred, the Park & Recreation Department also has the responsibility to validate the availability
of funds.
Submitted for City Manager's Office bk Jesica L. McEachern 5804
Oriainating Business Unit Head: Richard Zavala 5704
Additional Information Contact: Joel McElhany 5745