Resolution 2012-34 RESOLUTION NO. 2012-34(R)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WYLIE, TEXAS,
APPROVING THE TERMS AND CONDITIONS OF A WETLANDS
MITIGATION PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN
THE CITY OF WYLIE AND WETLANDS MANAGEMENT, LP;
AUTHORIZING ITS EXECUTION BY THE CITY MANAGER AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Wylie has awarded a contract for the reconstruction of
Woodbridge Parkway from Hensley Lane to SH 78 includes the reconstruction and new
alignment of a 4-lane concrete roadway, including a bridge over Maxwell Creek and the
NRCS Floodwater Retarding Reservoir No. 7; and
WHEREAS, on August 17, 2012 the City of Wylie received a permit from the
Corps of Engineers under Section 404 of the Clean Water Act to place fill material into
waters if the United States, including a special condition that 4.3 credits be purchased
from the Bunker Sands Mitigation Bank to compensate for the adverse project impacts;
'�""`° and
WHEREAS, Wetlands Management L.P. owns Bunker Sands Mitigation Bank
and has entered into an agreement and has been authorized by the United States Army
Corp of Engineers to provide such services; and
WHEREAS, the City Council has been presented with a professional services
agreement between the City of Wylie and Wetlands Management L.P. for the purchase of
4.3 mitigation credits in the amount of$84,440; a substantial copy of which is attached
hereto as Exhibit "A" and incorporated herein by reference (hereinafter called
"Agreement"); and,
WHEREAS, upori.�'ull review and consideration of the Agreement and all matters
attendant and related thereto, the City Council is of the opinion that the Agreement
should be approved, and that the City Manager shall be authorized to execute it on behalf
of the City of Wylie.
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF WYLIE, TEXAS, THAT:
Section L The City Council hereby finds and determines that Wetlands
Management L.P. has presented a professional services agreement, thus the purchase of
such is exempt from competitive bid as provided for in V.T.C.A., Local Government
Code, Section 252.022(a)(4).
Section II. This Resolution shall become effective immediately upon its
passage.
DULY PASSED AND APPROVED this the 9 day of October, 2012.
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Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P.
MITIGATION CREDIT SALES AGREEMENT
This Mitigation Credit Sales Agreement(the "Agreement") is entered into by and
between Wetlands Management, L.P., a Texas limited partnership ("Wetlands"), and City
of Wylie, Texas (the "Purchaser").
RECITALS:
A. This Agreement is entered into pursuant to that certain Mitigation Banking
Instrument Agreement dated April 30, 2008, (the "MBI")between, among
others, Wetlands Management, L.P., a Texas limited partnership
("Wetlands"), as the sponsor, and the U.S. Army Corp of Engineers
("USACE") which established the Bunker Sands Mitigation Bank(BSMB)
under Permit Number SWF-2004-00420 (the "Bank").
B. Pursuant to the terms of the MBI, Wetlands intends to develop, restore,
„� enhance, create and preserve wetlands, and open water habitat on certain real
property described in the MBI in exchange for mitigation bank credits
authorized by USACE (the "Credits").
C. The Purchaser is constructing certain roadway infrastructure, and in
conjunction with such construction, USACE has required that the Purchaser
provide off-site wetland mitigation to compensate for impacts to USACE
jurisdictional waters.
D. The Purchaser desires to purchase 4.3 credits to satisfy the Purchaser's
mitigation obligation for 2.37 acres of impact to medium quality wetland
habitat. The Purchaser's Permit Number is SWF-2010-00533.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration described in this
Agreement, the receipt and sufficiency of which are hereby acknowledged,the
Purchaser and Wetlands agree as follows:
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P
1. Sale of the Credits. Wetlands 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 Wetlands, 4.3 credits.
2. Pavment for Credits. In consideration of the delivery of the Credits, the
Purchaser agrees to pay to Wetlands the sum of eighty four thousand four
hundred and forty dollars and no/100 ($84,440.00) for all of the Credits
purchased pursuant to this Agreement.
3. Representations.
(a) Representations of Wetlands. Wetlands 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.) Wetlands 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;
(iii.) Wetlands shall issue to Purchaser such documentation as is
required by USACE to show the purchase of 4.3 Credits
was consummated by Purchaser in accordance with the
MBI;
(iv.) this Agreement, and all other agreements executed in
connection with this Agreement, are the legal, valid and
binding obligations of Wetlands, enfarceable 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;
and ..,..,.
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P
(v.) Wetlands is operating and will continue to operate the Bank
in accordance with all applicable USACE laws, regulations,
orders, permit requirements, agreements and guidance,
including, without limitation,the MBI and Permit Number
S W F-2004-00420.
Other than as expressly set forth above, Wetlands 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
Wetlands the following:
(i.) 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
��a`� transactions contemplated by this Agreement; and
(ii.) 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 Wetlands.
1. Confidentialitv. The Purchaser shall keep absolutely confidential the
existence of this Agreement, its terms, and all information regarding the
MBI, Wetlands, 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
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P
Wetlands in writing. Wetlands acknowledges that the Purchaser is subject
to the Texas Public Information Act, and that the Purchaser's
confidentiality obligations hereunder are subject and subordinate to the
Purchaser's obligations under that act.
2. 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.
3. Bindin�greement; Assi�nment. 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 Wetlands or the Purchaser without the
written consent of the other.
4. Restriction on Recordation. Neither this Agreement nor any notice,
memorandum nor notation thereof shall be recorded or disclosed by
Wetlands or the Purchaser in any public records or in any document made
public, except where disclosure is otherwise required by law.
5. Attorney's Fees. If there is a dispute between the Purchaser and Wetlands
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.
6. Final A�reement. This Agreement embodies the whole agreement of the
Purchaser and Wetlands. This Agreement shall supersede all previous
communications, discussions, representations, advertisements, proposals
or agreements either verbal or written, between the Purchaser and
Wetlands not otherwise contained in this Agreement.
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P
7. Captions. The captions in this Agreement are included for convenience
only and shall be given no legal effect whatsoever.
8. Modification. This Agreement may not be modified except by written
instrument executed by both the Purchaser and Wetlands.
9. 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.
10. 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.
l 1. 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.
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Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P
IN WITNESS WHEREOF, the Purchaser and Wetlands have executed this
Agreement effective for all purposes as of the day of , 2012.
WETLANDS:
WETLANDS MANAGEMENT, L.P.
By:
John M. Dziminski
Its: President
Address: 2101 Cedar Springs Road
Suite 1600
Dallas, TX 75201
Telephone: 214-849-9144
THE PURCHASER:
City of Wylie, Texas
By:
Mindy Manson
City Manager
Address: 300 Country Club Road
Wylie, Texas 75098
Telephone: 972-516-6018
Resolution 2012-34(R)
Professional Services Agreement
Wetlands Management L.P