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Home My WebLink AboutContract 46808 CITY SECRETAW CONTRACT NO. LW. 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 five and eight-tenths (5.8) 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, five and eight- tenths (5.8) Credits. M � 2. Payment for Credits. In consideration of the delivery of the Credits, the M Purchaser agrees to pay to TRMB the sum of One Hundred One Thousand and Five Flurrdred t m M Dollars and ►ars cents ($101,500.00) for all of the Credits purchased pursuant to this Agreement. � a c � r 0 o N OFFICIAL RECORD CITY SECRETARY a 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 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 TRIv1B 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. 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 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 2-'� day of � , 2015. THE PURCHASER: TRMB: CITY OF FORT WORTH, TEXAS TRINITY RIVER MITIGATION BANK, L.P. a Texas Municipality a Texas limited partnership By: Wetland Partners, L.P. By: ts: General Partner -4- 'Fernando Costa Its: Assistant City Manager By: WF Investments, Inc. Its: General Partner RECOMMENDED: By: By: ChoyLeng T. S ott 09f Its: CFO Its: of 9 5956 Sherry Lane, Suite 1810 �4M,' D �U M l ig p A44W-4�,4- aid c+U. Dallas, Texas 75225 APPROVED AS TO FORM AND LEGALITY: Telephone: (214) 891-0920 Facsimile: (214) 891-9855 Tax ID#: 20-2137693 By: k—Grant Jor an Its: Assistant City Attorney on T ATTEST: Q °°°00� 0 8 gj p0 jr By. Mary J. Kayser °' °„�°°° City Secretary rEXAs M&C: C - L�2S Z Date: 5-- 5 -/� Attn: Ronald Clements, AIA Property Management Department 401 West 13"' Street Fort Worth, Texas 76102 Telephone: (817) 392-8014 Fax: (817) 392-8488 OFFICIAL RECORD CITY SECRETARY FT.WORTH TX 5 MjtC Review Page 1 of 2 Official site of the City of Fort worth,Texas CITY COUNCIL AGENDA FORT. ' OM COUNCIL ACTION: Approved on 5/5/2015 REFERENCE ** 21 NORTH SERVICE CENTER - DATE: 5/5/2015 NO.: C-27282 LOG NAME: PHASE 1, WETLAND MITIGATION CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of a Credit Sales Agreement in the Amount of$101,500.00 Between Trinity River Mitigation Bank, L.P., and the City of Fort Worth for Wetland Mitigation at the North Service Center(COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council authorize the execution of a Credit Sales Agreement in the amount of$101,500.00 between Trinity River Mitigation Bank, L.P., and the City of Fort Worth for wetland mitigation at the North Service Center, DISCUSSION: This Agreement is for the purchase of wetland mitigation bank credits for the construction of the North Service Center, Phase 1. The Trinity River Mitigation Bank, L.P. (TRMB), administers off-site wetland mitigation for the U.S. Army Corps of Engineers. The North Service Center project requires the purchase of 5.8 wetland mitigation credits from the TRMB at a cost of$101,500.00. On May 7, 2013, (M&C C-26239) the City Council authorized the design of Phase I of the North Service Center. The purchase of the mitigation credits was anticipated and accounted for in the project budgets. Phase I of the project, including the purchase of the mitigation credits, is being funded through Stormwater Utility Funds and Solid Waste Funds which were previously transferred and appropriated to the Specially Funded Capital Projects Fund. Subject to approval of this Mayor and Council Communication (M&C) funding for the North Service Center the project budget will be: TOTAL TO TOTAL FUND EXISTING FY15 ADDITIONAL DATE ENCUMBRANCES/ REVISED APPROPRIATION APPROPRIATION PROJECT EXPENDITURES PROJECT BUDGET BALANCE Specially Funded $2,450,453.00 $0.00 $ 2,450,453.00 $1,346,911.07 $ 1,103,541.93 Capital Projects 2014 Bond $7,950,000.00 $0.00 $14,004,300.00 $ 894,360.00 $13,109,940.00 Program PROJECT $16,454,753.00 $0.00 $16 �[$,4,213,481.93,454,753.00 $2,241,271.07 TOTAL The project is physically located in COUNCIL DISTRICT 7 but will serve Fort Worth residents in ALL COUNCIL DISTRICTS, FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that sufficient funds are available in the current http://apps.cfwnet.org/council_packet/me—review.asp?ID=2096 Mcouncildate=5/5/2015 6/2/2015 M-',,C Review Page 2 of 2 capital budget, as appropriated, to cover the requested expenditure for this project in the Specially Funded Capital Projects Fund. AVAILABLE PROJECTED REMAINING FUND BALANCE EXPENDITURE BALANCE APPROPRIATION APPROPRIATION Specially Funded $1,205,041.93 $101,500.00 $1,103,451.93 Capital Projects TO Fund/Account/Centers FROM Fund/Account/Centers C291 531200 207070210530 $50,750.00 C291 531200 237070210530 $50,750.00 Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head; Wayne Corum (5118) Additional Information Contact: Glenn Balog (2028) ATTACHMENTS North Sery Ctr CMAR Location Map 20feb15.pdf http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20961&councildate=5/5/2015 6/2/2015