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Home My WebLink AboutR2015-046RESOLUTION NO. 82015 -046 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 SOUTH FORKS TRINITY RIVER MITIGATION GROUP 1, LP., A TEXAS LIMITED PARTNERSHIP, 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 $66,888; 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 to the City of Denton upon the completion of the payment by the City to South Forks Trinity River Mitigation Group 1, LP., of mitigation bank credits in the amount of $66,888; 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 correct and 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 $66,888 in mitigation credits from South Forks Trinity River Mitigation Group 1, LP., substantially in the form of the 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 as required by the agreement. SECTION 3. This Resolution shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the _ ATTEST: JENNIFER WALTERS, C ,TY SECRETARY APPROVED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY By: . ..._ ,� ..en. - - -- .. Page 2 CHRIS WATTS, MAYOR CREDIT SALES AGREEMENT This Credit Sales Agreement (the "Agreement ") is entered into by and between South Forks Trinity River Mitigation Group 1, LP., a Texas limited partnership ( "SFTRMG1 "), and the City of Denton (hereinafter referred to as the "Purchaser "). RECITALS: A. Pursuant to that certain Mitigation Banking Instrument Agreement dated December 2006 (the "MBI ") between, among others, SFTRMG1., a Texas limited partnership, and South Forks Trinity River Mitigation Bank, Inc., a Texas corporation, (SFTRMB -Inc.) as the sponsor, and the U.S. Army Corp of Engineers ( "USACE "), SFTRMB -Inc., as Sponsor of the Bank, established the South Forks Trinity River Mitigation Bank (SFTRMB) under Permit Number 200300558 (the "Bank "). B4 Pursuant to the terms of the MBI, SFTRMG1, and SFTRMB -Inc., 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 "). C. 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. D. The Purchaser desires to purchase two and eight tenths (2.8) 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 SFTRMB agree as follows: 1.Sale of the Credits. SFTRMG1 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 SFTRMG1, two and eight tenths (2.8) Credits. Upon full and complete execution of the Agreement and payment of the Credits as described below, Purchaser shall submit proof of purchase and transfer of ownership to the USACE, in a form which is sufficient to the USACE. Purchaser agrees to submit further documents to USACE and the Purchaser as may be reasonably necessary to show Purchaser's ownership of the Credits purchased. Payment for Credits. In consideration of the delivery of the Credits, the Purchaser agrees to pay to SFTRMG1 the sum of sixty six thousand, eight hundred eighty -eight dollars ($66,888.00) for all of the Credits purchased pursuant to this Agreement. Representations. (a) Representations of SFTRMG1. SFTRMG1 represents to the Purchaser the following: (i) the Credits are free and clear of all liens, pledges, security interests or other encumbrances other than those imposed by the MBI; (ii) SFTRMG1 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 SFTRMB, 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. (iv) 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 200300558. (v) SFTRMG1 represents and /or warrants to Purchaser that it is aware USACE has required that the Purchaser provide off -site wetland mitigation to compensate for impacts to USACE jurisdictional wetlands and that SFTRMG1 is not aware of any circumstance, regulation or prohibition for Purchaser's use of the Credits to satisfy, in whole or part, any mitigation obligation of the Purchaser. (b) Representations of Purchaser. The Purchaser represents to SFTRMG1 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 SFTRMG1. 4. 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. 5. 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 SFTRMG1 or the Purchaser without the written consent of the other. 6. Attorney's Fees. If there is a dispute between the Purchaser and SFTRMG1 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. T Final Agreement. This Agreement embodies the whole agreement of the Purchaser and SFTRMG1. This Agreement shall supersede all previous communications, discussions, representations, advertisements, proposals or agreements either verbal or written, between the Purchaser and SFTRMG1 not otherwise contained in this Agreement. 8, Captions. The captions in this Agreement are included for convenience only and shall be given no legal effect whatsoever. 9. Modification. This Agreement may not be modified except by written instrument executed by both the Purchaser and SFTRMG1. 10. 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 Tarrant County, Texas. 11. 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. 12. 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 Purcha er and L�R MB have executed! this Agreement effective for all purposes as of the , " ' day of 201 5. SFTRMGI: South Forks Trinity River Mitigation Group 1, LP a Texas limited partnership By: South Forks Trinity River Mitigation Bank, Inc. Its: General Partner By: , Jo °rny Mack: Powers Its: Pres lent Address: 1135 Highway 205 South Rockwall, Texas 75032 Telephone: 972/771.3738 THE PURCHASER: City of Denton, Texas a Municipal Corporation d ro Its:w`c Address: 1527 South Mayhill Road Denton, Texas 76208 Telephone: 940 - 349 -8044 ATTEST: JENNIFER WALTERS, CITY SECRETARY A T PVOVED AS TO LEGAL FORM: A I I A t11. iRGESS, f "I"I" N ,A- l "' ORN EY