R2019-253 2019-10-14RESOLUTION NO. R2019-253
A Resolution of the City Council of the City of Pearland, Texas, authorizing a
contract with the Lower Brazos River Mitigation Bank for the purchase of
forested wetland credits, in the amount of $180,000.00, to satisfy the mitigation
requirements for construction of the McHard Road Expansion Project (Cullen
Boulevard to Mykawa Road).
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain wetland mitigation contract, a copy of which is attached hereto as
Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest a contract for wetland mitigation associated with the McHard Road
Project.
PASSED, APPROVED and ADOPTED this the 14th day of October, A.D., 2019.
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ATTEST:
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MARIA RODRIGUEZ
INTERIM CITY SECRETARY
APPROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
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TOM REID
MAYOR
Resolution No.
R2019-253
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MITIGATION PURCHASE AGREEMENT
THIS MITIGATION PURCHASE AGREEMENT(hereinafter,this"Agreement")is made this
a4/1 day of Doi- 2019, by and between Regent Sienna Plantation Partnership,L.P. ("Seller"), a
Texas limited partnership, whose mailing address 12100 Wilshire Boulevard, Suite 1750, Los
Angeles,California 90025 and the City of Pearland("Buyer")3519 Liberty Drive,Pearland,Texas
77581 (collectively, the "Parties").
WITNESSETH:
WHEREAS, Seller is the owner and sponsor of the Lower Brazos River Mitigation Bank
located in Fort Bend County,Texas(the "Mitigation Bank").
WHEREAS, Buyer requests to purchase sufficient functional credit units, FCU's
("Credits) for the compensation of 0.80 acres of forested wetland impact as designated in SWG-
2016-00478.
WHEREAS, Buyer, is required to mitigate the impact to wetlands due to the development
of the McHard Road Extension Project, Brazoria County, Texas (USGS HUC 12040204) as
described in Buyer's proposed permit No. SWG-2016-00478 ("Permit"), and Buyer wishes to
provide this mitigation through the purchase of Credits from the Seller, as the project lies within
the Secondary Service Area of the Mitigation Bank.
WHEREAS, Buyer has performed a hydrogeomorphic model (HGM) on the project tract
which resulted in.an FCU requirement of 0.27 Physical FCU, 0.46 Biological FCU, and 0.43
Chemical FCU for the herbaceous wetland impact,and since the project is located in the Secondary
Service Area of the Mitigation Bank, the Seller will apply a 1.5 multiplier to the credits deducted
from the bank ledger resulting in 0.4 Physical FCU, 0.7 Biological FCU, and 0.7 Chemical FCU
being deducted from the Forested Credit Ledger.
NOW,THEREFORE,in consideration of the mutual covenants hereinafter contained,and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto, each intending to be legally bound, do hereby agree as follows:
1. Purchase Price. Subject to the terms of this Agreement, the purchase price (hereinafter, the
"Purchase Price") for the Credits to be purchased by Buyer is One Hundred Eighty Thousand
dollars ($180,000.00).The Purchase Price shall be paid by Buyer in cash,payable to Seller via
check, cashier's check or wire transfer within five (5)business days after the mutual execution
of this Agreement.
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2. Approval of Buyer's Permit. The transactions contemplated in this Agreement are subject to
approval in all material respects by the USACE. The obligations of the Parties hereunder
(except as provided in Section 7 below) shall terminate in the event Buyer's Permit is not
approved or conditionally approved and issued by the USACE within 365 days (1 year) of the
effective date hereof;provided, however, if Buyer is experiencing either unforeseen delays in
the permitting process with the USACE or delays beyond its reasonable control, the Buyer, or
the Buyer's agent, may contact the Seller within 10 business days after the expiration date of
this Agreement to request and negotiate an extension of this Agreement,which request will not
be unreasonably withheld, delayed or conditioned. If an extension is not requested within the
time period described above, this Agreement will terminate as described above.
3. Credits. Upon execution of this Agreement and Seller's receipt of the Purchase Price, Seller
shall provide the Credits to Buyer. Seller shall send written notice of intent to USACE to
provide the Credits. The number of Credits to be purchased by Buyer("Purchased Credits")
are 0.4 Physical FCU, 0.7 Biological FCU, and 0.7 Chemical FCU and as agreed upon under
Section 2 above ("Buyer's Approved Permit").
4. Finalizing Transaction. Within thirty (30) days after Buyer's receipt of Buyer's Approved
Permit, Buyer shall deliver written notice thereof (the "Exercise Notice") to Seller, which
notice must be accompanied by a copy of Buyer's Approved Permit and the amount of
Purchased Credits.
Provided the Purchase Price was paid by Buyer in accordance with Section 1 above,within ten
(10) days of Seller's receipt of the Exercise Notice, Seller shall submit to USACE a Letter of
Confirmation with a copy of Buyer's Approved Permit, if approved at that time, and a written
request to transfer the Purchased Credits to the Buyer, along with such other documentation as
may be necessary to effect the transfer of the Purchased Credits.
5. Representations.
a. The Buyer represents to Seller the following:
i.the Buyer has duly taken all action necessary to authorize the execution and
delivery of this Agreement and to authorize the consummation and
performance of the 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 Buyer,
enforceable in accordance with their terms. •
b. The Seller represents to the Buyer the following:
i. the Seller is a Texas limited partnership, duly formed and validly existing;
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ii. the Seller has duly taken all action necessary to authorize the 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 Seller,
enforceable in accordance with their terms
6. Confidentiality. To the/extent allowed by law,the Buyer shall keep confidential the existence
of this Agreement, its terms, and all information regarding the Seller, and the terms and
conditions of the Bank that the Buyer learned, was provided or was otherwise disclosed to
Buyer in connection with the negotiation, execution and consummation of this Agreement,
except for the disclosure of those terms to its consultants, agents,and representatives who have
a need to know the information for the purposes of this Agreement,that are already in the public
domain, where disclosure is otherwise required by law, or the disclosure is approved by Seller
in writing.
7. Default and Remedies
a. If the purchase of the Credits contemplated hereby is not consummated because of
a default by Buyer under this Agreement through no fault of Seller,then Seller shall
have the right to retain$180,000 (100%) of the Purchase Price.
b. If the purchase of the Credits contemplated hereby is not consummated because of
a default by Seller under this Agreement through no fault of Buyer,then, Seller shall
promptly return the entire Depositto Buyer as Buyer's exclusive remedy.
c. If the purchase of the Credits contemplated hereby is not consummated because the
USACE does not provide its approval of Buyer's Permit under Section 2 above,then
Seller shall promptly return the entire Deposit to Buyer as Buyer's exclusive
remedy.
8.' Attorney's Fees. If either Party brings an action to enforce the terms of this Agreement or to
declare rights hereunder, the prevailing Party in any such action shall be entitled to his legal
costs and reasonable attorneys' fees to be paid by losing Party as fixed by the court.
9. Assignment. Buyer shall not assign, pledge or hypothecate this Agreement without the prior
written consent of Seller, which consent shall not be unreasonably withheld, delayed or
conditioned.
10. Applicable Law.This Agreement shall be construed and enforced in accordance with the laws
of the state of Texas.
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11. Notices. All notices required by this Agreement shall be in writing and shall be sent by U.S.
certified or registered mail, overnight delivery service, charges or by hand delivery, to the
addresses set out below, or sent by fax to the numbers below.
Notices to Seller shall be sent to: Regent Sienna Plantation Partnership,L.P.
12100 Wilshire Blvd., Suite 1750
Los Angeles, CA 90025
With a copy to: John G. Cannon
CoatsIRose
3 Greenway Plaza#2000
Houston,Texas 77046
FAX: (713) 651-0220
Notices to Buyer shall be sent to: Jennifer Lee
Senior Project Manager, City of Pearland
Engineering& Capital Projects
2559 Hillhouse Road
Pearland,Texas 77584
With a copy to: ' City of Pearland, Texas
3519 Liberty Drive
Pearland,TX 77581
do Clay Pearson
City Manager
cpearson@pearlandtx.gov
Any notice or demand so given, delivered or made by United States mail shall be deemed so
given, delivered or made no later than the 3rd business day after the same is deposited in the
United States Mail, registered or certified letter, addressed as above provided, with postage
thereon fully prepaid, the next business day after being deposited, charges prepaid, with a
nationwide overnight delivery service. All Parties agree that any notice may be faxed to any of
the above Parties, and such faxed notice shall be effective upon receipt of confirmation of
delivery by the sending party provided that a copy of such notice given via facsimile is
simultaneously sent to the noticed party via overnight delivery.Buyer and Seller may from time
to time notify the other of changes with respect to whom and where notice should he sent by
sending notification of such changes pursuant to this paragraph.
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with a copy to: Berg Oliver Associates Attn:
Susan Alford
14701 St. Mary's Ln., Ste. 400
Houston, TX 77079
FAX: (281) 589-0007
12. Entire Agreement. This Agreement contains the entire understanding between the Parties and
the Parties agree that no representation was made by or on behalf of the other which is not
contained in this Agreement, and that in entering into this Agreement neither relied upon any
representation not especially herein contained.
13. Choice of Law, 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 Harris County, Texas.
14. Amendments and Waivers. This Agreement may not be amended, modified, altered, or
changed in any respect whatsoever, except by a further agreement in writing duly executed by
each and all of the parties hereto.
15. No Joint Venture or Partnership or Agency Relationship. Seller does not have any
ownership interest in Buyer's business relationships or operations and Buyer does not have any
interest in Seller's business relationships or operations. The relationship between Seller and
Buyer is not in any manner whatsoever a joint venture or partnership and neither party shall be
the agent of the other for any purpose, unless specifically granted in writing after execution
hereof. Neither party shall hold itself out as an agent, partner or joint venturer with the other
and each party shall defend and indemnify the other against any claim of liability arising out
of an asserted agency, partnership or joint venture by the other contrary to the express
provisions of this paragraph.
16. Captions: Genders. Captions used in this Agreement are for convenience of reference only and
shall not affect the construction of any provision of this Agreement. Whenever used, the
singular shall include the plural, the plural shall include the singular, and gender shall include
all genders.
17. Partial Invalidity. In case any term of this Agreement shall he held to be invalid, illegal or
unenforceable, in whole or in part, neither the validity of the remaining part of such term or the
validity of any other term of this Agreement shall in any way be affected thereby.
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18. Further Assurances.The Parties shall execute such further documents and do any and all such
further things as may be necessary to implement and carry out the intent of this Agreement.
19. Effective Date.The Effective Date of this Agreement is the date on which the last of the Parties
signs this Agreement and delivers a fully executed copy to the other party.If more than 30 days
have transpired between the first and last signature,this Agreement is null and void.
20. Counterparts. This Agreement may be executed in any number of counterparts, any one and
all of which shall constitute the agreement of the parties and shall be deemed one original
instrument. This Agreement may be executed by each party upon a separate copy at attached
to another copy in order to form one or more counterparts.
21. Time is of the Essence.Time is of the essence under the terms of this Agreement.
22. Agreement Not Recordable.This Agreement shall not be recorded in the public records of any
county and any attempt to do so shall be null and void and of no force and effect whatsoever
and any attempt to do so shall place said party in default hereof.
[Signatures commence on following page]
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IN WITNESS WHEREOF,the Parties hereto have duly executed this Agreement,to
become effective in accordance with the terms of this Agreement.
SELLER:
REGENT SIENNA PLANTATION,L.P.,
a Texas limited partnership
By: SR Sienna GenPar,LLC,
• a Delaware Limited Liability
Company, its General Partner
By: Regent SP Investors, L.P.,
a Texas limited
partnership, its Member
By: KFO, Inc.,
a California corporation,
its General Partner
BY: ./d-eA-P,Ajt 6;Afi•iv
Its: Vol-,
Signed on (9156/44/0 2 8 ,2018
BUYER: C' o 'ea /f
By: —Zr- 1L
Name: Clay Pe.i on
Title: City Manager
Signed on / U , 2019
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