Ordinance No. 13,395ORDINANCE NO. 13,395
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE CITY MANAGER TO EXECUTE PURCHASE AND SALE
AGREEMENT FOR MITIGATION CREDITS WITH GIN CITY RESTORATION,
LLC, AND MITIGATION SOLUTIONS USA, LLC, FOR MITIGATION CREDITS
ASSOCIATED WITH THE SAN JACINTO BOULEVARD PROJECT;
AUTHORIZING PAYMENT IN AN AMOUNT NOT TO EXCEED ONE HUNDRED
FIVE THOUSAND AND NO/100 DOLLARS ($105,000.00); MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute a Purchase and Sale Agreement for Mitigation Credits with Gin City Restoration,
LLC, and Mitigation Solutions USA, LLC, for mitigation credits associated with the San Jacinto
Boulevard Project. A copy of said agreement is attached hereto as Exhibit "A," and incorporated herein
for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment in the amount
not to exceed ONE HUNDRED FIVE THOUSAND AND NO/100 DOLLARS ($105,000.00) in
accordance with the agreement authorized in Section 1 hereinabove.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated
§252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) or less,
subject to the provision that the original contract price may not be increased by more than twenty-five
percent (25%) or decreased by more than twenty-five percent (25%) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediatelZft
d after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative voity Council of the City of
Baytown this the 26°i day of January, 2017.
BRYSCH, City
APPROVED AS TO FORM:
J
ClAO RAMIltEZ, SR., C' y ttorney
\\uobfs0l\legal ren\Files\City Council\ manesIY7\January26\MitigationCreditAgreement.doc
Exhibit "A"
PURCHASE AND SALE AGREEMENT FOR MITIGATION CREDITS
(Gin City Mitigation Bank)
This Purchase and Sale Agreement for Mitigation Credits ("Agreement") is entered into
this day of , 2017, (the "Effective Date") by and between Gin City
Restoration, LLC, a Texas limited liability company, ("Gin City"), Mitigation Solutions USA,
LLC, a Texas limited liability company ("Agent") and City of Baytown ("Buyer"), together
collectively referred to herein as the "Parties."
RECITALS
A. Agent has the exclusive right to sell mitigation credits derived from the Gin City
Mitigation Bank through a separate Exclusive Brokerage Agreement dated October 10, 2013,
with Gin City, the Bank Sponsor for the Gin City Mitigation Bank ("GCMB"), under that certain
mitigation banking instrument entitled "Mitigation Banking Instrument, Gin City Mitigation
Bank, Harris County, Texas, SWG-2011-01181," for the Gin City Mitigation Bank" (the
"MBI"), issued by the Department of the Army, Galveston District, Corps of Engineers
("USACE") and setting forth the requirements for the development of the GCMB;
B. Gin City has approval from the USACE to offer certain compensatory mitigation
credits (the "Credits") for sale as compensation for unavoidable adverse impacts to, or for the
loss of, among other things, jurisdictional waters of the United States, including wetlands and
steams, and other natural habitats and ecosystems, located within that certain geographical
service area more particularly depicted on attached Exhibit A (the "Service Area") or other
areas as may be approved by the USACE in accordance with the MBI. The Credits being sold
pursuant to this Agreement are more particularly described on attached Exhibit B.
C. Buyer is seeking to implement a project in the Service Area of the GCMB
described in a proposed Permit No. SWG-2015-00778 (the "Permit"), HUC# 12040104, Buffalo
San Jacinto (HUC Name) submitted by Buyer to the USACE (the "Project") that will
unavoidably and adversely impact wetlands;
D. Buyer seeks to compensate for the loss of such wetlands by purchasing 1.5 FCUs
in the form of 0.5 Temporary Storage of Surface Water ("TSSW') credits, 0.5 Maintenance of
Plant and Animal Communities ("MPAC") credits, and 0.5 Removal and Sequestration of
Elements and Compounds ("RSEC", each of the TSSW, MPAC and RSEC designations being
referred to herein as a "Credit Category," collectively the "Credit Categories") credits from the
GCMB (such 1.5 FCUs, as broken down into the appropriate Credit Categories, referred to
herein as the "Subject Credits", the same being also set forth on Exhibit B);
E. Buyer will diligently seek all required authorization from the USACE under the
Permit for its purchase of the Subject Credits; and
F. Buyer desires to purchase from Gin City, and Gin City desires to sell, through its
Agent to Buyer the aforementioned Subject Credits according to the terms and conditions set
forth herein:
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SET FORTH
ABOVE AND THE REMAINING TERMS, COVENANTS AND CONDITIONS SET FORTH
HEREIN THE PARTIES AGREE AS FOLLOWS:
1. Purchase and Payment.
a. Purchase Price. From the Subject MB, the GCMB, Gin City agrees to sell to
Buyer, and Buyer agrees to purchase from Gin City, 1.5 Credits for the total purchase
price of $105,000.00 (the "Purchase Price"), all as more particularly described on
attached Exhibit B. The Purchase Price shall be due and payable to Gin City upon the
execution of this Agreement in immediately available U.S. funds.
b. BUYER ACKNOWLEDGES AND AGREES THAT (I) THIS AGREEMENT IS
AN ARM'S-LENGTH CONTRACT BETWEEN THE PARTIES; (II) GIN CITY 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. Sale of Subiect Credits. The Subject Credits will be transferred by Gin City to Buyer
following: a) the approval of USACE of the Permit; and, b) upon Gin City's receipt of payment
of the balance of the Purchase Price, which shall be evidenced with a final invoice marked
"PAID IN FULL". Once the Subject Credits have been transferred by Gin City to Buyer, the
sale contemplated in this Agreement shall be deemed to have occurred, at which time Gin City
will so notify the USACE with a copy to Buyer.
3. No Property Interest or Special Relationship. The sale of Subject 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 joint venture
or any other special relationship.
4. Permit Authorizations. Buyer will be solely responsible for making all required
applications and seeking all required permits and authorizations from the USACE or any other
governmental entity, as applicable, regarding the Permit and its use and application of the
Subject Credits.
Fa
5. No Other Brokers. Gin City and Buyer each represent and warrant to the other that they
have not had any dealings with any brokers, finders or agents, and no commissions or fees are
payable, in connection with this Agreement, other than to Agent, whose commission is paid by a Gin
City pursuant to that certain Exclusive Brokerage Agreement between Gin City and Agent. EACH OF
THE PARTIES AGREE TO RELEASE THE OTHER PARTIES AND THOSE PERSONS ACTING ON BEHALF
OF SUCH PARTY FROM ALL CLAIMS, CAUSES OF ACTION, LOSS, ATTORNEYS' FEES, COURT COSTS
AND OTHER EXPENSES ARISING OUT OF ANY DEMAND FOR PAYMENT OF ANY BROKER'S OR
FINDER'S FEE OR COMMISSION ARISING UNDER THIS AGREEMENT. The obligations of the
Parties under this provision will survive termination of this Agreement and the purchase of the
Subject Credits.
6. Default and Remedies.
a. Gin City's Default; Buyer's Remedies. If Gin City shall be in default hereunder,
Buyer may deliver written notice to Gin City stating the alleged default of Gin City and
the action required by Gin City to cure such default, whereupon Gin City shall have (30)
days to cure the alleged default (and performance of Buyer's obligations under this
Agreement shall thereupon be delayed, if necessary, until the end of such 30 -day period).
If such default is not cured within such 30 -day period, then Buyer shall have the right to
pursue any and all remedies as may be available at law or in equity.
b. Buyer's Default, Gin City's Remedies. If Buyer shall be in default hereunder, Gin
City may deliver written notice to Buyer stating the alleged default of Buyer and the
action required by Buyer to cure such default, whereupon Buyer shall have thirty (30)
days to cure the alleged default (and performance of Gin City's obligations under this
Agreement shall thereupon be delayed, if necessary, until the end of such 30 -day period).
If such default is not cured within such 30 -day period, then Gin City shall have the right
to pursue any and all remedies as may be available at law or in equity.
C. Limited Liability. No individual member, partner, manager, officer, director,
shareholder, employee, contractor or agent of Gin City or Buyer shall be personally liable
for any judgment or deficiency brought under this Agreement. Buyer waives all claims
against Gin City and Agent, and all of their respective affiliates, contractors and agents,
together with all those persons acting through or on behalf of any and all such parties, for
consequential, special or punitive damages of any kind allegedly suffered by any Buyer
or any related parties. Likewise, Gin City waives all claims against Buyer, and all of its
respective affiliates, contractors and agents, together with all those persons acting
through or on behalf of any and all such parties, for consequential, special or punitive
damages of any kind allegedly suffered by Gin City or any related parties.
7. 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
3
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. 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 Gin City: Gin City Restoration, LLC
PO Box 1174 (mailing)
2223 Hickory Manor Drive (physical)
Huffman, Texas 77336
Attn: Suzanne Jamison
Phone: (818)415-1685
Email: gin-city@sbcglobal.net
If to Agent: Mitigation Solutions USA
3200 Wilcrest, Suite 460
Houston, Texas 77042
Attn: Terry McKenzie
Phone: (713) 812-9000
Email: terry@msusa.com
With a copy to: Mettauer Law Finn, PLLC
403 Nacogdoches, Suite 1
Center, TX 75935
Attn: Matthew D. Mettauer
Phone: (936) 598-9400
Email: matthew(ailmettauerlaw.com
If to Buyer: City of Baytown
2401 Market Street
Baytown, TX 77520
Attn: Mr. Jose A Pastrana, P.E.
Director of Engineering
Phone: 281-420-6545
Email: citymanager(a,baytown.org
8. Assignment. No party will be entitled to assign this Agreement to any person without
the prior written consent of all the Parties hereto; provided, however, that Buyer may assign this
Agreement to an Affiliate or a third party having ownership of the Project. The term "Affiliate"
as used in this Section 12 shall mean an entity that directly or indirectly through one or more
intermediaries' controls or is controlled by or is under common control with Buyer.
9. Confidentiality. All information related to this Agreement that is in the possession or control
of Buyer, including the Agreement itself, is subject to the Texas Public Information Act,
Chapter 552, Texas Government Code (the "Act"). The Act allows the public to have access
to information in the possession of a governmental body through an open records request,
unless the infomation falls under any of the Act's exceptions to required disclosure. If Seller
provides any information to Buyer that Seller believes is confidential business information or
otherwise confidential, Seller must mark each page of such information "CONFIDENTIAL."
For any information marked "CONFIDENTIAL," if a person submits an open records
request seeking disclosure of such information, Buyer agrees to notify the Seller of the
request and Seller shall have the opportunity to present to the Office of the Attorney General
its arguments for non -disclosure of the Confidential Information.
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
of 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.
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 Liberty County, Texas, or the United States District Court for the
Eastern District of Texas, Beaumont Division (provided the amount in controversy
exceeds the minimum jurisdictional limit required to file in federal court), 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
execution 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. If either party retains an attorney to enforce this Agreement, the party
prevailing in litigation is entitled to recover reasonable and actual attorney's fees and
court and other costs.
f. Each party agrees that it will, at any time and from time to time after the
execution of this Agreement, upon request of the other party, do, execute, acknowledge
and deliver, or will cause to be done, executed, acknowledged or delivered, all such
further acts, deeds, assignments, conveyances and assurances as may reasonably be
required to carry out the intended purposes of this Agreement.
g. This Agreement, together with its exhibits, constitutes the entire agreement of the
Parties concerning the sale of the Subject Credits to Buyer. There are no oral
representations, warranties, agreements or promises pertaining to such sale not
incorporated in writing in this Agreement.
h. 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.
i. The obligations of this Agreement that cannot be performed before termination of
this Agreement or before closing of the sale of the Subject Credits will survive
termination of this Agreement or such closing, and the legal doctrine of merger will not
apply to these matters.
j. Time is of the essence of this Agreement and each provision hereof. 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
Services are suspended.
Signatures commence on following page
6
Buyer Signature Page to
Purchase and Sale Agreement for Reserved Mitigation Credits
BUYER
City of Baytown
By:
Name:
Title:
Date:
Signatures continue on following page
Agent Signature Page to
Purchase and Sale Agreement for Reserved Mitigation Credits
AGENT:
MITIGATION SOLUTIONS USA, LLC
I
Date: A,,ju Aizq 3 20 j 7
Signatures continue on following page
Gin City Signature Page to
Purchase and Sale Agreement for Reserved Mitigation Credits
GIN CITY:
Gin City Restoration, LLC
A Texas limited liability company
By:
Y �
Name: Suzanne Jamison
Title: Manager
Date: <t: �ctC 4 G rip
End of Signatures
V&
EXHIBIT A
SERVICE AREA
Gin City Mitigation Bank
Service Area Map
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Gin City Service Area
Counties
Primary Service Area
- Secondary Service Area
10
EXHIBIT B
Purchase of Subject Credits
Subject to the terms and conditions of the Agreement:
Buyer will purchase 1.5 wetland Functional Capacity Units from Gin City Mitigation Bank for
the Total Purchase Price of $105,000.00. These credits will be sold as follows:
Temporary Storage of Water (TSSW): 0.5 credits
Maintenance of Plant and Animal Communities (MPAC): 0.5 credits
Removal and Sequestration of Elements and Compounds (RSEC): 0.5 credits
Total Purchase Price = $105,000.00
11