HomeMy WebLinkAbout064817 - Construction-Related - Contract - Mustang Creek Mitigation Holdings, LLC 64817
b. The Bank Credit Purchase Price shall be paid by Buyer to Seller within 7 days of
the execution of this Agreement in the following manner:
Bank Name: Texas Capital Bank
Bank Routing Number/ABA: 111017979
Account Name: CEF II Mitigation Holdings LLC
Account Number: 2400135812
Important: These instructions are good for wires only.
They will not work for EFT or ACH payments.
c. BUYER ACKNOWLEDGES AND AGREES THAT (I) THIS AGREEMENT IS
AN ARM'S-LENGTH CONTRACT BETWEEN THE PARTIES; (II) SELLER
HAS NO CONTROL OVER THE ACTIONS OR INACTIONS OF THE USACE
OR ANY OTHER GOVERNMENTAL AGENCY; AND (III) EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, ALL
REPRESENTATIONS, DISCLOSURES AND WARRANTIES, EXPRESS
OR IMPLIED, ARE FULLY DISCLAIMED.
2. Term and Termination. The Parties contemplate that the Agreement will remain in
effect the earlier of (i) the transfer of the Subject Mitigation Credits by Seller to the
Buyer or (ii) twelve (12) months following Buyer's delivery of the Bank Credit Purchase
Price to Seller ("Term"). Any unused credits at the expiration of this contract will remain
the sole property of Seller. Following either event, this agreement shall terminate, and
the parties will have no further obligation to each other.
3. Sale of Subiect Miti�ation Credits. The Subject Mitigation Credits will be transferred
by Seller to Buyer within 7 days following: (a) Buyer's authorization of the credit transfer;
and (b) upon Seller's receipt of payment of Bank Credit Purchase Price, which shall be
evidenced with a final invoice marked "PAID IN FULL". Once the Subject Mitigation
Credits have been transferred by Seller to Buyer, the sale contemplated in this Agreement
shall be deemed to have occurred, at which time Seller will so notify the USACE with a
copy to Buyer.
4. No Propertv Interest or Snecial Relationship; The sale of Subject Mitigation Credits as
described herein is not intended as a sale to Buyer of a security, license, lease, easement or
possessory or non-possessory interest in real property, nor the granting of any interest in
the foregoing. The relationships between the Parties are ordinary commercial relationships;
the Parties do not intend to create any other kind of relationship, such as principal and
agent, a partnership, a j oint venture, or any other special relationship.
5. Representations of Buver. The Buyer represents to Seller the following:
a. the Buyer has duly taken all action necessary to authorize the execution and
delivery of this Agreement and to authorize the consummation and performance of
the transactions contemplated by this Agreement; and
2
b. this Agreement, and all other agreements executed in connection with this
Agreement are the legal, valid, and binding obligations of the Buyer, enforceable in
accordance with their terms.
6. Representations of Seller. The Seller represents to Buyer the following:
a. the Seller is a Delaware limited liability company, duly formed and validly existing;
b. the Seller has all interests in property necessary to manage MCMB and has
established the Subject Mitigation Credits contemplated by this Agreement;
c. the Seller has duly taken all action necessary to authorize the execution and delivery
of this Agreement and to authorize the consummation and performance of the
transactions contemplated by this Agreement; and
d. this Agreement, and all other agreements executed in connection with this
Agreement are the legal, valid, and binding obligations of the Seller, enforceable in
accordance with their terms.
7. Default and Remedies.
a. Seller's Default; Buver's Remedies.
i. If Seller shall fail to transfer the Subject Mitigation Credits to Buyer in
accordance with this Agreement, and Seller's failure is not caused by or a
result of (i) an act of default by Buyer under this Agreement or (ii) any other
act or omission by Buyer, Seller shall be deemed in default and Buyer's sole
remedy shall be the refund of monies paid by Buyer under this Agreement.
Seller shall have no liability for any damages in excess of the Bank Credit
Purchase Price. Seller shall have no liability for consequential or punitive
damages.
ii. Seller will not be held liable or responsible for any damage that may be
caused by its inability, after the exercise of due diligence, to satisfy the
mitigation requirements of this Agreement caused in whole or in part by
unforeseeable causes beyond the control and without the fault or negligence
of Seller, including but not limited to: acts of God, acts of the public enemy,
insurrections, riots, strikes, lockouts, labor disputes, labor or material
shortages, floods, interruptions to transportation, embargoes, acts of military
authorities, or other causes of a similar nature which wholly or partly
prevent the performance by Seller of its obligations hereunder (each, a
"Force Majeure" event). In the event that Seller is rendered unable, wholly
or in part, by reason of Force Majeure, to carry out its obligations under this
Agreement, it is agreed that on Seller's giving notice and full particulars of
such Force Majeure in writing to the Buyer within a reasonable time after
the occurrence of the cause relied on, the obligations of the Seller, so far as
they are affected by such Force Majeure, shall be suspended during the
3
continuance of any inability so caused but for no longer period, and such
cause shall so far as possible be remedied as soon as possible. Once the
disability is removed, Seller's obligation to perform under this Agreement
shall continue.
b. Buver's Default; Seller's Remedies. If Buyer shall fail to deliver the Bank Credit
Purchase Price in accordance with this Agreement, Seller may terminate this
Agreement.
Notice. Any notice or demand permitted or required by this Agreement shall be made in
writing and shall be delivered by hand delivery, which shall include delivery by reputable
national overnight courier service, such as Federal Express, or by electronic transmission
(including electronic mail or facsimile, as may be set forth below) with confirmation of
transmission followed by hand delivery of a copy of such notice or demand. Any such
notice or demand shall be effective and deemed received on the date delivered to the
address of the addressee, as indicated on the receipt confirmation if delivered by hand, or
if delivered by electronic transmission, on the date of such transmission, as indicated on
the receipt confirmation. Notice of rejection, or other refusal to accept, or the inability to
deliver because of changed address of which no notice was given shall be deemed receipt
of the notice, demand or request sent. For the purposes of this Section, notices shall be
directed as follows:
If to Seller. Mustang Creek Mitigation Holdings LLC
Attn: Jeff Knowlton
4030 Maple Ave, Suite 100
Dallas, TX 75219
Phone:
If to Buyer: Citv of Fort Worth
Jesica McEachern
Asst. Citv Mana�er
Email : Jesica.McEachern@fortworthtexas.�ov
Phone:
9. Assignment. No party will be entitled to assign this Agreement to any person without
the prior written consent of all the Parties hereto.
10. Miscellaneous.
a. The section headings in this Agreement are for convenience of reference only and
are not intended, to any extent and for any purposes, to limit or define text of any
section or subsection thereof. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement will nonetheless remain in full force and effect.
0
b. This Agreement shall be construed and enforced according to laws of the State of
Texas. The Parties agree that venue for any litigation between the Parties shall be
in the state district court of Dallas County, Texas, and the Parties agree to submit
to personal jurisdiction therein; provided, however, that the foregoing shall not be
construed to limit the rights of a party to enforce a judgment or order from either of
these courts in another jurisdiction.
c. This Agreement may be executed in any number of counterparts, each of which
shall be considered an original, but such counterparts together shall constitute one
and the same instrument. The signature pages may be detached from one
counterpart and reattached to another counterpart in order to form a fully-eXecuted
original instrument. Signatures to this Agreement transmitted by facsimile or
electronic mail will be valid and effective to bind the party so signing. Each party
agrees to promptly deliver any executed original to this Agreement with its actual
signature to the other Parties, but a failure to do so will not affect the enforceability
of this Agreement.
d. This Agreement shall be binding upon and inure to the benefit of the Parties'
respective successors, successors-in-title and assigns. There are no third-party
beneficiaries of this Agreement.
e. Each party shall be responsible for its own attorneys' fees in connection with the
subject matter of this Agreement. The rule of construction that ambiguities in a
document will be construed against the drafting party will not be applied in
interpreting this Agreement.
f. This Agreement, together with its exhibits, constitutes the entire agreement of the
Parties concerning the sale of the Subject Mitigation Credits to Buyer. There are
no oral representations, warranties, agreements, or promises pertaining to such sale
not incorporated in writing in this Agreement.
g. This Agreement may be amended only by an instrument in writing signed by the
Parties. No term or condition of this Agreement will be deemed to have been
waived or amended unless expressed in writing, and the waiver of any condition or
the breach of any term will not be a waiver of any subsequent breach of the same
or any other term or condition.
h. Time is of the essence of this Agreement and each provision hereo£ If the last day
upon which performance would otherwise be required or permitted is a Saturday,
Sunday, or holiday, then the time for performance shall be extended to the next day which
is not a Saturday, Sunday, or holiday. The term "holiday" shall mean all and only
mandatory federal holidays including which deliveries by the United States Postal Service
are suspended.
Signatures commence on the following vage.
Seller Signature Page to
Purchase and Sale Agreement for Subject
Mitigation Credits
IN WITNESS WHEREOF, the Parties have eXecuted this Agreement the day and
year first above written.
SELLER
�7g�F l��rowGton
By. Jeff Kriowlton (Feb V, 2026 16�.04�25 MST)
Name: Jeff Knowlton
Title:
�ate: February 17 , z026
6
Buyer Signature Page to
Purch se and Sale Agreement for Subject
Mitigation Credits
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and
year first above written.
BUYER
By: � �i�C��
Name: Jesica L. McEachern
Title: Asst. Citv Mana�er
�ate: February 26 , 2026
End ofSignatures
7
EXHIBIT A
SERVICE AREA
Wftchfta � v � v � �r
1113ozo6 � �
Farmere-Mud � (JakeTexoma Mustang Creek
�/ iii3ozoi
� � Little . �I iii7ozio
witcnaa Gainesvill Mitigation Bank
1113ozo9 • �
Arc-Islantl
, ' 313Q0101
I � - -� Efm Fork
� '__ _ � � . _ Trinil� Sulphur
—j---- _
i �, azo3oao; � -- Headv�at.er
� . .__-- --"iii4o3oi
Bra�iddle � Upper West
s-Millers Fork Trinity '�
i�o6otoi uo;oio3 �"tO" Denton i,
12o3oioq �
East Fork
� � Trinity Lake ForV
'� Plano izo3oio6 1201000�
ower lear , C roll n Upper
—�....�... . _ - _ -_ . _ . � Sabine
izoi000i
�".arland� . ,�
. �
��� Irving I � �
M �cral A�/c s
// Middle � Wealherford � allas Mc.=.t�qHc - 1
¢os-Palo Pinto � For[ Worth � � ��
i2o6oaoi Lower Wes� Arlinc�on j
�� Fork Trinity � Gran Prairie f �
� izo3oioz .
I RON1X/OOD M���t,,,�� ��E2k
' RESOURCE ADVISORS Mitigatier Bank uppec cedar
Trinity'� 1zo3o1o;
Ro3olor l;
' ��L N� � ti
GEOSP��L �� r ---- ---- ---
, � � � `\` — ---- � ` �
Chambers i,,,� .
�_-- ixo3oao9 -
8 Digit HUCs Primary Service Area a�ceY �f�
, [g�a USACE DisVic[ Boundary K Secondary Service Area \ � s
,r.'
�J i Coun[ies �� Tertiary Service Area n� � Richland __-
1 �--� � \\ 120;0108 7�inityLT hu
� �.. . ti . . ��'� \ 12 1 ti
8
EXHIBIT B
Purchase of Subiect Mitigation
Subject to the terms and conditions of the Agreement:
Buyer will purchase 110.37 Stream Credits from Mustang Creek Mitigation Bank for a Bank
Credit Purchase Price as follows:
Total Purchase Price: $193,148.00 ($1,750 per Stream Credit)
Bank Credit Purchase Price Due upon Execution of Agreement: $193,148.00
G]
PURCHASE AND SALES AGREEMENT FOR MITITATION CREDITS-MUSTANG CREEK MITIGATIN BANK
CITY PROJECT NO: C00626
ADDITIONAL ROUTING SIGNATURES
CITY OF FORT WORTH
Contract Compliance Manager:
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.
�
Beniamin Thompson�� Name of Employee/Signature
Title: Sr. Professional En�ineer
Email: benjamin.thompson@fortworthtexas.�ov
APPROVAL RECOMMENDED:
l%la,wu«� /iZ,�..,,,_
BY; Lauren Prleur (Feb 19, 2026 182628 CST)
Lauren Prieur, Director
Transportation and Public Works Department
Email: lauren.prieur@fortworthtexas.gov
CONTRACT AUTHORIZATION
M &C: 26-0104
Date Approved: 02/10/26
Form 1295: See Attachment
APPROVED AS TO FORM AND LEGALITY:
��
gY: Douglas Black (Feb 19, 2026 18:30:33 CST)
Douglas W. Black
Senior Assistant City Attorney
Email: douglas.black@fortworthtexas.gov
ATTEST AS TO CITY MANAGER SIGNATURE:
czt�t. /� ..bi�s_�-mt,t 4pORt�Il�
4F000 a
�
,�o� °��ad
BY: a"`� °9°0
v�� °o-�o
Jannette S. Goodall °°° °_'
°Ad*� �°�d
City Secretary �a�u nEXASoQ
Email: Jannette.Goodall@fortworthtexas.gov
C�7��Cy1,1�:�X�%]:a�7
�«] � i'�'i Xy:� � ��1:�'1
FT. WORTH, TX
City of Fort Worth,
Mayor and
DATE: 02/10/26
Texas
Council Communication
M&C FILE NUMBER: M&C 26-0104
LOG NAME: 20LOVING AVE CULVERT AND CHANNEL USACE MITI BANK AGREEMENT
SUBJECT
(CD 2) Authorize Execution of a Mitigation Bank Credit Purchase Agreement with Mustang Creek Mitigation Holdings, LLC in the Amount of
$193,148.00 for the Purchase of Mitigation Credits from the United States Army Corps of Engineers for the Loving Avenue Channel and Culvert
Improvements Project
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Mitigation Bank Credit Purchase Agreement with Mustang Creek Mitigation
Holdings, LLC in the amount of $193,148.00 for the purchase of mitigation credits from the United States Army Corps of Engineers for the Loving
Avenue Channel and Culvert Improvements project (City Project No. C00626).
DISCUSSION:
The purpose of this Mayor and Council Communication (M&C) is to authorize execution of a Mitigation Bank Credit Purchase Agreement for the
purchase of mitigation credits from the United States Army Corps of Engineers (USACE).
The Loving Avenue Channel and Culvert Improvements project was initiated to mitigate hazardous roadway overtopping, potential home flooding,
and erosion threats to residential homes in the project area. The initial construction project did not trigger the Waters of the United States (U.S.)
mitigation requirements due to its size.
However, due to the failure of a portion of the previously constructed channel lined with articulated concrete block, additional improvements will be
needed to repair the failed portion and line an additional 100 feet of channel to mitigate future failures. This additional scope of work triggers the
Waters of the U.S. mitigation requirements due to the increasing impact on the natural channel.
In accordance with Section 404 of the Clean Water Act, the Loving Avenue Culvert and Channel Improvements Project requires a Nationwide
Permit 43 (NWP 43) from the USACE because it involves the construction of a stormwater management facility, including a culvert crossing and
erosion control armoring, across Waters of the U.S., specifically Loving Channel. This permit authorizes the discharge of dredged or fill material
associated with the channel and culvert construction within areas designated as Waters of the U.S.
The magnitude of the stream impact necessitates compensatory mitigation, which can be achieved in one of three ways: by creating additional
habitat on-site or at an alternate location approved by the USACE, or by purchasing mitigation credits from a mitigation bank. The City of Fort
Worth (City) is adopting the latter approach because mitigation banks assume responsibility for the long-term success of the mitigation site,
thereby relieving the City of this responsibility. The NWP 43 Stormwater Management Facilities authorization, combined with the mitigation bank
credits, ensures compliance with federal regulations, allowing for the additional channel lining improvements to be constructed and the project to
be completed.
Mustang Creek Mitigation Holdings, LLC is an established mitigation bank that allows for the sale of mitigation credits to third parties in need of
such mitigation, as approved by USACE. A Purchase of Mitigation Agreement, in the amount of $193,148.00 from Mustang Creek Mitigation
Holdings, LLC, will be executed for the transfer of credits to compensate for the loss of aquatic resources.
Funding is budgeted in the Stormwater Capital Projects Fund for the Transportation & Public Works Department to fund the Loving Avenue
Channel and Culvert Improvements project, as appropriated.
The project is located in COUNCIL DISTRICT 2.
FISCAL INFORMATION / CERTIFICATION:
The Director of Finance certifies that funds are available in the current capital budget, as previously appropriated, in the Stormwater Capital
Projects Fund for the Loving Avenue Channel & Culver project to support the approval of the above recommendation and execution of the
agreement. Prior to any expenditure being incurred, the Transportation & Public Works Department has the responsibility to validate the availability
of funds.
Submitted for Citv Manaaer's Office bv: Jesica McEachern 5804
Oriainatina Business Unit Head: Lauren Prieur 6035
Additional Information Contact: Thanaa Maksimos 2485
CERTIFICATE OF INTERESTED PARTIES
Complete Nos. 1- 4 and 6 if there are interested parties.
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
1 Name of business entity filing form, and the ciry, state and country of the business entity's place
of business.
Mustang Mitigation Holdings LLC
Dallas, TX United States
2 Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Fort Worth
Fulshear, TX United States
g Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
C00626
Stream Mitigation Credits
Nature of interest
4
Name of Interested Party City, State, Country (place of business) (check applicable)
Controlling Intermediary
CEF II Mitigation Holdings LLC Dallas, TX United States X
Ironwood Resource Advisors LLC
5 Check only if there is NO Interested Party
6 UNSWORN DECLARATION
My name is Jeff Knowlton
I-
My address is 4030 Maple Ave, Suite 100
Dallas
FORM 129'rJ
1of1
OFFICE USE ONLY
CERTIFICATION OF FILING
Certificate Number:
2026-1411158
Date Filed:
01/21/2026
Date Acknowledged:
TX 75219
(state) (zip code)
�
USA
(country)
(dtv>
I declare under penalty of perjury that the foregoing is true and correct.
Executed in D8118S County, State of TeXaS
, on the 21 day of JanUal'�/ 20 26
(month) (year)
�� � /, �
,� �.�.�
Signature of authorized agent of contracting business entity
(Declarant)
, and my date of birth is
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V4.1.0.22701b2a
F�RT �aRTH�
Routing and Transmittal Slip
Transportation & Public Works Department
DOCUMENT TITLE: Loving Ave Channel Mitigation Credits Contract
M&C: 26-0104 CPN: C00626 CSO: DOC#:
Date: 02/17/26 �
To: Name Department Initials Date Out
1 Jeff Knowlton — Signature Engineer �
(JK@cem-tx.com) �K
2. Ben Thompson - Signature TPW Project Mgr. a% 02/17/2026
3. Thanaa Maksimos — Review TPW Program Mgr. rM 02/18/2026
4. Lissette Acevedo — Review TPW Sr. CPO o(�l
5. Patricia Wadsack - Review TPW Asst. Dir. j�(�'�/' 02/19/2026
6. Lauren Prieur - Signature TPW Dir. � 02/19/2026
7. Doug Black - Signature Legal �
8. Jesica McEachern - Signature CMO (� 02/26/2026
9. Katherine Cenicola - Review CSO �� 02/27/2026
10. Jannette Goodall - Signature CSO '�',<<;, �,�� 03/02/2026
11. Allison Tidwell - Review CSO ��,,—�� 03/04/2026
12. TPW SW Contracts TPW SW
CC: Program Manager — Thanaa Maksimos, Sr. CPO — Lissette Acevedo, TPW BSPAP Recon
Team — Cindy Sengathith
DOCUMENTS FOR CiTY MANAGER'S SIGNATURE: All documents received from any and all
City Departments requesting City Manager's signature for approval MUST BE ROUTED TO THE
APPROPRIATE ACM for approval first. Once the ACM has signed the routing slip, David will review
and take the next steps.
NEEDS TO BE NOTARIZED: ❑YES �No
RUSH: ❑YES �No SAME DAY: ❑YES �No
NEXT DAY: ❑YES �No
ROUTING TO CSO: �YES ❑No
Action Required:
❑ As Requested
❑ For Your Information
� Signature/Routing and or Recording
❑ Comment
❑ File
❑ Attach Signature, Initial and Notary Tabs
Return to: tpw sw contracts(a�fortworthtexas.gov Ca11817-229-3283 with questions. Thank you!
F�RT��RTHo
City Secretary's Office
Contract Routing & Transmittal Slip
Contractor's Name: Mustang Creek Mitigation Holdings LLC
SubjeCt Of the Agreement: Purchase of Mitigation Credits for the US Army Corps of Engineers Section
404 Permit associated with channel and culvert improvements of Loving Channel
M&C Approved by the Council? * Yes 0 No ❑
If �so, the M&C must be attached to the contract.
Is this an Amendment to an Existing contract? Yes ❑ No ❑✓
If �so, provide the original contract number and the amendment number.
Is the Contract "PermanenY'? *Yes 0 No ❑
If �unsure, see back page for permanent contract listing.
Is this entire contract Confidential? *Yes ❑ No ❑✓ If only specific information is
Confidential, please list what information is Confidential and the page it is located.
Jeff Knowlton would prefer that his birthdate be redacted on the 1295 form
Effective Date:
If different from the approval date.
Expiration Date:
If applicable.
Is a 1295 Form required? * Yes ❑✓ No ❑
*If �so, please ensure it is attached to the approving M&C or attached to the contract.
Proj ect Number: If applicable. C00626
*Did you include a Text field on the contract to add the City Secretary Contract (CSC)
number? Yes ❑✓ No ❑
Contracts need to be routed for CSO processin� in the followin� order:
1. Katherine Cenicola (Approver)
2. Jannette S. Goodall (Signer)
3. Allison Tidwell (Form Filler)
*Indicates the information is required and if the information is not provided, the contract will be
returned to the department.