The URL can be used to link to this page

Home My WebLink AboutR2015-039RESOLUTION NO. 82015 -039 A RESOLUTION AUTHORIZING THE FILING AND ACCEPTANCE OF A "CREDIT SALES AGREEMENT" BY AND BETWEEN THE CITY OF DENTON, TEXAS (SOLID WASTE AND RECYCLING DEPARTMENT) AND MILL BRANCH, LLC, FOR THE CITY'S PURCHASE OF MITIGATION CREDITS TO OFFSET IMPACTS TO THE WATERS OF THE UNITED STATES IN ACCORDANCE WITH THE U.S. ARMY CORPS OF ENGINEERS, SECTION 404 PERMIT AND THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, SECTION 401 CERTIFICATION REQUIREMENTS, IN THE PREPARATION, DEVELOPMENT AND SUBMITTAL OF A PERMIT APPLICATION FOR LATERAL EXPANSION AND ASSOCIATED SERVICES PERTAINING TO THE CITY OF DENTON LANDFILL (MSW PERMIT NO. 1590A); AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR IN THE STATED AMOUNT OF $249,690; PROVIDING AN EFFECTIVE DATE. WHEREAS, the Environmental Protection Agency ( "EPA ") has upgraded its "Resource Conservation and Recovery Act" ( "RCRA "), Subtitle D, to be more protective of public health and the environment. This particular Federal rule applied to Municipal Solid Waste ( "MSW ") facilities, and became effective on October 9, 1993. The RCRA update required many improvements in the design and operating criteria for MSW landfills, including the requirement for landfills to be constructed with composite liners; and WHEREAS, the State of Texas followed the EPA subsequently by updating the "Texas Solid Waste Disposal Act" ( "TSWDA ") which TSWDA met or exceeded the RCRA, Subtitle D requirements. As a result, all MSW landfills in Texas had to have their landfill permits reissued to meet the new requirements. At that time Denton submitted a landfill permit application that met all of the new regulatory design and operating requirements that provided for an expansion of the landfill increase from 36 acres to 229 acres (a 153 acre footprint), in order to meet Denton's projected mid -term disposal needs; said permit was approved by the TCEQ in October 1997; and WHEREAS, in the mid - section of the designed landfill site was a small intermittent stream that handled the storm water drainage from the field, which fed into another small intermittent stream that fed into Pecan Creek. The drainage from the field was replaced with two drainage conveyances along the perimeter of the landfill, which then drained back into the same stream segment that fed into Pecan Creek; the City received authorization in 1995 to fill the intermittent stream under Nationwide Permit No. 26. No action was taken and the permit expired; and WHEREAS, upon conducting a preliminary review of the existing site and review of its permit, as part of the development of a permit amendment to expand the landfill, staff discovered that not all of the stream was removed (1,776 feet). Staff immediately contacted the U. S. Army Corps of Engineers ( "USACOE ") to begin the process to obtain a new authorization to complete the necessary work. Both the public notice and comment period required by law are now complete. USACOE will issue the permit upon the completion of the payment by the City of mitigation bank credits in the amount of $249,690; and WHEREAS, the Council hereby concludes that this Resolution is necessary and in the best interests of the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DENTON HEREBY RESOLVES: SECTION 1. The recitations contained in the Preamble of this Resolution are true and d correct an are hereby incorporated as a part of this Resolution. SECTION 2. The City Council hereby authorizes the City Manager, or his designee, to execute and deliver the above - referenced "Credit Sales Agreement" for the purchase of mitigation credits, wherein the City of Denton, Texas is purchasing mitigation credits from Mill Branch, LLC," substantially in the form of agreement that is attached hereto and incorporated herewith by reference; and the City Manager, or his designee, is hereby further authorized to expend funds as provided in and required by the Agreement. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the V7. day of , 2015. ATTEST: CHRIS WA °I"7', MAYOR JENNIFER WALTERS, CITY SECRETARY B ry APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY ,d B \ Page 2 CREDIT SALES AGREEMENT This CREDIT SALES AGREEMENT (hereinafter referred to as "Agreement") is made and entered into this /9 day of 2015 by and between MILL BRANCH, LLC, a Delaware limited liability company (hereinafter referred to as "MB "), and the City of Denton, Texas (hereinafter referred to as "Purchaser "). 1. PROJECT NAME: City of Denton Landfill (hereinafter the "Project ") USACE PERMIT NUMBER: SWF- 2014 -00224 USACE PERMIT TYPE: IP SERVICE AREA: Mill Branch Primary PURCHASER: City of Denton City Hall 215 E. McKinney Street Denton, TX 76201 2. PRICING: Number of credits purchased: 178.35 Credit type: 178.35 ephemeral Credit price (per unit): $1,400 Total Purchase Price $249,690.00 3. PAYMENT: 3.1 Terms. MB agrees to accept from Purchaser at the time of execution of this Agreement a nonrefundable payment in the amount of two hundred forty nine thousand six hundred ninety dollars and 00 /100 ($249,690.00), representing the Total Purchase Price. _ ,2 Reservation and ;�l Following M3 s receipt t the Total Purchase � _ rv� Price, 178.35 Credits shell be reserved in MB's Mill Branch mnitigation bank inventory and, earmarked specifically for use by Purchaser. MB shall subsequently deliver such Credits to .Purchaser upon receipt of notice requesting the same. No Credits shall be delivered, transferred, or otherwise conveyed by MB to Purchaser pursuant to this Agreement prior to MB's receipt of the Total Purchase Price. 4. DELIVERABLES: See Attached Draft Credit Transaction Notification 5. INFORMATION AND RELIANCE: MB and Purchaser acknowledge and agree that MB is relying upon information provided solely by Purchaser in providing compensatory mitigation pursuant to this Agreement. Purchaser shall indemnify and hold MB harmless in the event that any such information proves to be inaccurate, false, or otherwise deficient or in error. Purchaser warrants that the information provided to MB for the purposes of determining the nature and amount of compensatory mitigation for the Project is accurate and complete to the best of their knowledge. MB shall not be liable for inaccuracies or omissions in the calculation or determination of the amount of compensatory mitigation required for the Project. 6. LIABILITY FOR COMPENSATORY MITIGATION: In consideration for receiving the Total Purchase Price from Purchaser, MB shall assume liability for providing compensatory mitigation under the terms of this Agreement and in accordance with U.S. Army Corps of Engineers Section 404 permit and Texas Commission on Environmental Quality Section 401 certification requirements. 7. FINAL SALE: The sale of credits, defined specifically as the receipt of the Total Purchase Price by MB pursuant to this Agreement is final. Under no circumstances shall Purchaser be entitled to a refund of any amounts provided to MB for the reservation or delivery of Credits under the terms of this Agreement. 2 8. COMPLETE AGREEMENT: This Agreement constitutes the full and complete agreement by and between MB and Purchaser for payment and the reservation, delivery, and sale of compensatory mitigation credits for the Project. 9. RECEIPT OF TOTAL PURCHASE PRICE: By executing this Agreement the Parties acknowledge that Purchaser has tendered to MB the Total Purchase Price set forth in Paragraph 2, above. 10. GOVERNING LAW: This Agreement shall be construed, interpreted, and enforced solely under the laws of the State of Texas. 11. NONASSIGNABILITY: This Agreement may not be assigned without the consent, in writing, of the other Party. 12. AGREEMENT BINDING ON SUCCESSORS: This Agreement shall be binding upon the Parties, their legal representatives, heirs, successors, and assigns to the full extent of prevailing law. George Campbell City Manager Authorized for: City of Denton, Texas Date: g ��m 4 P 2 1 .......,,.�..... _... ATTEST: JENNII ^ "I R WALTERS, CITY C'ItETAlt" By: _. 'I'' ,')AS' : t . LEGAL FORM: ANITA 13I1i {C I aS J A,I'.I°OR I"'Y Y' Sir— .l. clam Riggsbee, P i1 . Authorized for: Mill Branch, LLC Date: &." (", /'I- Z Mill Branch XX November 2015 Mr, XXXXX XXXXXXX US Army Corps of Engineers 819 Taylor Street Room 3A37 Fort Worth, TX 76102 Delivered via email RE: CREDIT TRANSACTION NOTIFICATION for SWF-2014-00244;,CIT OF,, DENTONLANDFILL Dear Mr. XXXXXXXX: Per our Mill Branch Mitigation Banking instrument (MBI;-SWIZ-2(110-00321), we required to report all credit sales within thirty (30) days of Th' ,,.'jfjter serves as notice that a transaction was concluded on XX November Mitigation Bank and the City of Denton to cover inkigation recitflrements under SWI'*204-00244. The Mill Branch RIBITS Ledger will be debited appropriately within 3(1),(jays from the date#,,9fls transaction. The number of credits purchased by the o one hundred seventy eight and tb i: five I , W'hdredth Ephemeral In-Channel Credits (ICC) to be debited from the following :1, t1611 ofM� I'Br-anch Mitigation Bank: o Trib 3 - 178.35 ICC,, Additional specifics regardbi'O,' the p4f�haser and 40 relevant USACE permit information have gn been recorded in the Mill f) richl,ekyi P.NjeQuired"Under our MBI (Section IV Part 4). Sincerely, J. Adam Rjj; ep, PhD President Cc: Brent Jaspei',jU "' SAM' Vance Keimet. ' " i6' ity of Denton Lee Sherrod, Horizon Environmental Services, Inc. f I ( ) I , () x ), 9 Ij '? I , A I s k i I'), ) X "d i 3 I H" ) , t f I f a I I , I , ( , F £ )_ ), 4 1 , 7 / 5