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Ordinance No. 13,758ORDINANCE NO. 13,758 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, APPROVING THE PURCHASE AND SALE AGREEMENT FOR MITIGATION CREDITS BETWEEN THE BAYTOWN AREA WATER AUTHORITY, GIN CITY RESTORATION, LLC, AND MITIGATION SOLUTIONS USA, LLC, FOR MITIGATION CREDITS ASSOCIATED WITH THE 6 MGD SURFACE WATER TREATMENT PLANT PROJECT; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. **************************************************************************************************** WHEREAS, the Baytown Area Water Authority's enabling legislation requires that the City Council approve certain agreements before Baytown Area Water Authority ("BAWA") enters into the same; and WHEREAS, on April 18, 2018, the Board of Directors of BAWA approved the Purchase and Sale Agreement for Mitigation Credits between the Baytown Area Water Authority, Gin City Restoration, LLC, and Mitigation Solutions USA, LLC, for mitigation credits associated with the 6 MGD Surface Water Treatment Plant Project; and WHEREAS, the City of Baytown desires to approve such agreement; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the recitals set forth hereinabove are hereby found to be true and correct and are hereby adopted. Section 2: That the City Council of the City of Baytown, Texas, hereby approves the Purchase and Sale Agreement for Mitigation Credits between the Baytown Area Water Authority, Gin City Restoration, LLC, and Mitigation Solutions USA, LLC, for mitigation credits associated with the 6 MGD Surface Water Treatment Plant Project, which agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 3: This ordinance shall take effect immediately from and #r its passage by the City Council of the City of Baytown. ,� INTRODUCED, READ and PASSED by the affirmative vote 26'h day of April, 2018. ATTEST: L ICIA BRYSCH, City Cerk APPROVED AS TO FORM: I NACIO RAMIREZ, SR., Cityorney Council of the City of Baytown this the H. DONCARLOS, COBFS01 LegaMmen Fila City CounciA0rdinances\2018Wpril 26WpprovingP=hese&SeleAgrwnrnt4MittgationCreditsBAWAGinCityRestorntion,LLC,&MitigationSolutionsUSA,LLC 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 , (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 the Baytown Area Water Authority ("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 "MBP'), 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 M approved by the USACE in accordance with the BI. 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- - (the "Permit"), HUC# 12040203, North Galveston Bay HUC (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 17.1 FCUs in the form of 5.7 Temporary Storage of Surface Water ("TSSW ') credits, 5.7 Maintenance of Plant and Animal Communities ("MPAC") credits, and 5.7 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 17.1 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: Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Hams County, Texas I' a r 1 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: 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, 17.1 Credits for the total purchase price of $1,231,200.00 (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. 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, fmders 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 AGREES RELEASE THE OTHER PARTIES, AND THOSE PERSONS ACTING ON BEHALF OF SUCH PARTY, FROM ALL CLAIMS, CAUSES OF ACTION, LOSS, ATTORNEYS' FEES, COURT COSTS Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Hams County, Texas P i -= c 12 AND OTHER EXPENSES ARISING OUT OF ANY DEMAND FOR PAYMENT OF ANN 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) t 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 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 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: Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Hams County, Texas 13 If to Gin City. Gin City Restoration, LLC PO Box 1174 Huffinan, 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 Firm, PLLC 403 Nacogdoches, Suite 1 Center, TX 75935 Attn: Matthew D. Mettauer Phone: (936) 598-9400 Email: matthewnmettauerlaw.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: ci ana erg (cr;baytown.org With a copy to: City of Baytown 2401 Market Street Baytown, TX 77520 Attn: City Attorney Phone: (281) 420-6505 Email: legata,bay town. ori 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 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 Purchase and sale Agreement for Credits Gin City Mitigation Bank, Hams County, Texas !4 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. Miseellaneous. 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. Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County, Texas 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 Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Hams County, Texas I' :i r 6 Buyer Signature Page to Purchase and Sale Agreement for Mitigation Credits BUYER Baytown Area Water Authority Signature: _ Printed Name: Title: Date: Signatures continue on following page Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County, Texas 17 Agent Signature Page to Purchase and Sale Agreement for Mitigation Credits AGENT: MITIGATION SOLUTIONS USA, LLC Signature: A Printed Name: o V Title: "Ic -?xCS; I_ AJ Date: iL 4 Q Signatures continue on following page Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County. Texas P u c E S Gin City Signature Page to Purchase and Sale Agreement for Mitigation Credits GIN CITY: Gin City Restoration, LLC A Texas limited liability company Signature: Printed Name: Suzanne Jamison Title: Manager Date: '-D End of Signatures CII 7 OF- Purchase FPurchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County, Texas County [Vest Fork San Jacinto hlontgamwy county 72040 tOr i�ng '2040102 County EXHIBIT A SERVICE AREA Gin City Mitigation Bank Service Area Map Hardy C'�urity Bt. San Jacinto. 720.101 LW * Gin City Mitigation Bank Gin City Service Area Primary Service Area - Secondary Service Area San Jacinto CCunty [Vest Galvasron Ba \ 12040204 1 Q 8 Digi HUCs Counties `ote'rr.� r 120�0?tY' ^* 11.1::013 a _ - _• Lower Tnnty 12030203 County Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County, Texas I' .i r J 10 EXHIBIT B Purchase of Subiect Credits Subject to the terms and conditions of the Agreement: Buyer will purchase 17.1 wetland Functional Capacity Units from Gin City Mitigation Bank for the Total Purchase Price of $1,231,200.00. These credits will be sold as follows: Temporary Storage of Water (TSSW): 5.7 credits Maintenance of Plant and Animal Communities (MPAC): 5.7 credits Removal and Sequestration of Elements and Compounds (RSEC): 5.7 credits Total Purchase Price = $1,231,200.00 Purchase and Sale Agreement for Credits Gin City Mitigation Bank, Harris County, Texas 11