HomeMy WebLinkAboutContract 42147 ;ITY SECRETARY
"ONTAACT NOS �a I
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
municipal corporation (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 Corps 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 six and five-tenths (6.5) 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, six and five-
tenths (6.5) Credits.
2. Payment for Credits. In consideration of the delivery of the Credits, the
Purchaser agrees to pay to TRMB the sum of Nine Thousand Dollars and No/100 ($9,000) per
Credit purchased, or Fifty-Eight Thousand Five Hundred Dollars and No/100 ($58,500) for all of
the Credits purchased pursuant to this Agreement.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, 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 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 TRMB.
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 Aereement; Assienment. 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. Attorney'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 AEreement. 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]
IN WITNESS WHEREOF, the Purchaser and TRMB ha-P -xecuted this
Agreement effective for all purposes as of the 5-fir day of_,�o�,)Irr _, 2011.
J
CITY OF FORT WORTH, TEXAS TRMB
Purchaser
By: TRINITY RIVER MITIGATION
Fernando Costa BANK, L.P.
Assistant City Manager a Texas limited partnership
By: Wetland Partners, L.P.
Recommended: Its: General Partner
c J By.� A AAkt,
Doug Mersig &11 WN11ace L. Hall, Jr.
Director, TPW Department Its: President
Aproved as to 1`9=4 and eg ity: 5956 Sherry Lane, Ste. 1810
Dallas, TX 75225
Tel: 214-891-0920
Dou W. Black Fax: 214-891-9855
Assistant City Attorney
ATTEST: �4Qbo��n�
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CITY SECRETARY
Marty Hendrix 010 o e x� FT. WORTH, TX
City Secretary (l� °°° °O°T�
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Date: Amish , 2011 aaa
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M&C C- ZSR 5c�
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City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 7/26/2011
DATE: Tuesday,July 26, 2011 REFERENCE NO.: **C-25058
LOG NAME: 20PERMIT EASTERN HILLS
SUBJECT:
Authorize Execution of an Agreement with Trinity River Mitigation Bank, L.P., in the Amount of$58,500.00
for the Purchase of Wetland Mitigation Bank Credits for the Eastern Hills Storm System Improvements—
Phase 1 Multi—Use Storm Water Detention Basin(COUNCIL DISTRICT 4)
RECOMMENDATION:
It is recommended that the City Council authorize the City
Manager to execute an agreement with Trinity River Mitigation
Bank,L.P., in the amount of$58,500.00 for the purchase of
wetland mitigation bank credits required for construction of the
Eastern Hills Storm System Improvements—Phase 1 Multi—Use
Storm Water Detention Basin.
DISCUSSION:
The Eastern Hills Storm System Improvements –Phase 1
Multi—Use Storm Water Detention Basin project is needed to
reduce the risk of residential flooding and roadway overtopping in
the area. The project is impacting United States Army Corps of
Engineers (USACE)jurisdictional wetlands.As such, wetland
mitigation bank credits are required as a condition of a USACE
Nationwide Permit in the amount of$58,500.00.
Funding for this project is being provided from revenue bonds in
the Storm Water Capital Project Bond 2009 Fund.
This project is located in COUNCIL DISTRICT 4, Mapsco 79C.
FISCAL INFORMATION:
The Financial Management Services Director certifies that funds
are available in the current capital budget, as appropriated, of the
Storm Water Capital Project Bond 2009 Fund.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
P227 539120 204280136386 $58.500.00
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Doug Wiersig (7801)
' F
Additional Information Contact: Chad Simmons (8179008346)
ATTACHMENTS
1. Accounting info—l.doc
2. Eastern Hills Detention Pond.2df
3. FAR-01363-00004—Construction and Permits.pdf