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HomeMy WebLinkAbout12-16-19 City Commission Packet Materials - C7. Mitigation Credit PA with Upper Missouri Mitigation Bank for Front Street Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Bob Murray, Project Engineer Shawn Kohtz, City Engineer SUBJECT: Mitigation Credit Purchase Agreement and Acknowledgment with the Upper Missouri Mitigation Bank for the Front Street Interceptor Sewer. MEETING DATE: December 16th, 2019 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign the Mitigation Credit Purchase Agreement and Acknowledgment with the Upper Missouri Mitigation Bank for the Front Street Interceptor Sewer. BACKGROUND: Attached is a copy of the wetland Mitigation Credit Purchase Agreement and Acknowledgment with the Upper Missouri Mitigation Bank for the City’s Front Street Trunk Sewer Main project. There are a number of wetlands that will be impacted during the course of construction of the project. A wetland permit was obtained from the Army Corps of Engineers for the impact. That permit requires mitigation of 0.23 acres either through replacement of wetlands, or purchase of mitigation credits from an approved mitigation bank. We received quotes from both the Upper Missouri Mitigation Bank (UMMB) and the Montana Aquatic Resources Services (MARS). The UMMB quote was $9,500 and the one from MARS was $35,525. Engineering staff has reviewed the document and found it to be acceptable. UNRESOLVED ISSUES: None ALTERNATIVES: As suggested by the Commission FISCAL EFFECTS: $9,500 from the Wastewater Impact Fee Fund Attachments: Purchase Agreement Report compiled on: 12/5/19 145 --,*UPPER MISSOURI MITIGATION BANKSRI MISSOURI HEADWATERS, LLC, SPONSORMITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENTImpact Project:City of Bozeman, Front Street Sanitary Sewer Replacement withimpacts to wetlands associated with the East Gallatin River,Gallatin County (Bozeman), MTCorps. Permit: NWO-2019-00718-MTBMitiflation Bank: Upper Missouri Mitigation Bank, Madison County, MontanaThis Mitigation Credit Purchase Agreement and Acknowledgment ("Agreement") isentered into this _ day of _, 2019, by and between the City ofBozeman, Montana ("Purchaser") and SRI MISSOURI HEADWATERS LLC ("Seller") inaccordance with the recitals and provisions below.RECITALSA. Seller established, owns, operates and maintains an approved wetland and streammitigation bank (the "Bank") that is federally-certified by the U.S. Army Corps ofEngineers ("ACOE"), the U.S. Environmental Protection Agency, and the U.S. Fishand Wildlife Service, and state-certified by the Montana Department of EnvironmentalQuality and Montana Depari:ment of Fish, Wildlife and Parks.B. The Bank consists of over 200 acres of restored and enhanced forested, scrub-shruband herbaceous wetlands, with a value of over 77 wetland credits, as well as over20,000 linear feet of restored and protected river, stream and riparian corridor with avalue of 144,000 stream credits, respectively. The Bank property is located on theHamilton Ranch, near Twin Bridges, Madison County, Montana. Bank credits arecertified to be sold to private and governmental permittees as compensatorymitigation for unavoidable impacts under Section 404 of the Clean Water Act.C. Purchaser is developing the Impact Project identified above. Pursuant to adetermination by the ACOE that compensatory mitigation is necessary to offsetunavoidable aquatic resource impacts pursuant to Section 404 of the Clean WaterAct, Purchaser is obligated to provide such compensatory mitigation for the ImpactProject.D. Therefore, in consideration of the agreements and acknowledgements set forthherein and for other consideration, the receipt and sufficiency of which is herebymutually acknowledged by the Parties, Seller agrees to sell, and Purchaser agreesto buy, mitigation credits from the Bank in accordance with this Agreement.Mitigation Credit Purchase Agreement and AcknowledgmentPage 1 of 5146 ^UPPER MISSOURI MITIGATION BANKSRI MISSOURI HEADWATERS, LLC, SPONSORPROVISIONSCurrent Mitigation Credit Need, Price Rate and Payment: Purchaser warrants, covenants,represents and agrees that it currently needs to purchase 0.23 wetland credits fromSeller for impact associated with the Impact Project per the ACOE permit NWO-2019-00718-MTB.1. Purchaser therefore agrees to purchase, and Seller agrees to sell, 0.23 wetlandmitigation credits from the Bank in exchange for Purchaser's payment to Seller in theamount of $9,500 (Nine thousand Five hundred dollars) for this transaction. Within30 (thirty) days of the date of this Agreement, Purchaser shall provide the $9,500payment for the 0.23 wetland mitigation credits to Seller by certified funds, payableto:SRI MISSOURI HEADWATERS LLCc/o Swift River Investments, Inc.53 Williams StreetUpton,MA01568Notwithstanding the foregoing provisions in this paragraph, if Purchaser finds anotherseller willing to sell Purchaser 0.23 wetland mitigation credits at a lower price andthe credits are verified in writing byACOE as a valid mitigation solution for the ImpactProject, then Seller shall have the option, upon Purchaser's presentation to Seller ofboth the competing Mitigation Purchase Agreement and the written verification fromACOE, to sell Purchaser 0.23 wetland mitigation credits for 5% (five percent) lessthan the competitor's price.2. Letter Evidencing Mitigation Credits Transfer and Relief of Mitigation Liability. UponSeller's receipt and deposit of the full payment required by paragraph 1 above, Sellershall send a letter to the ACOE confirming Seller's transfer of 0.23 wetland mitigationcredits to Purchaser for the Impact Project. The ACOE's confirmation that it hasreceived the letter evidencing the transfer of 0.23 wetland mitigation credits shallconstitute the final action necessary to relieve Purchaser from liability for the aquaticresource impacts at the Impact Project for which the 0.23 wetland mitigation creditsare required.3. Seller's Assumption of Mitigation Liability. Following Seller's receipt and deposit ofthe full payment required by paragraph 1 above and the ACOE's confirmation that ithas received Seller's letter evidencing transfer of 0.23 wetland mitigation credits toPurchaser for the Impact Project, Seller shall assume all liability and responsibility forthe performance, operation and long-term maintenance of the 0.23 wetlandmitigation credits in accordance with the Upper Missouri Mitigation Bank Agreement,to which Seller and ACOE are parties.Mitigation Credit Purchase Agreement and AcknowledgmentPage 2 of 5147 msi9UPPER MISSOURI MITIGATION BANKSRI MISSOURI HEADWATERS, LLC, SPONSOR4. Notice. Any notices required, permitted, or related to this Agreement shall be givenin writing and delivered (a) in person; (b) by certified mail, postage prepaid, returnreceipt requested; or (c) by a commercial overnight courier that guarantees next daydelivery and provides a receipt, and such notices shall be addressed as follows:If to Seller:SRI Missouri Headwaters LLCc/o Swift River Investments, Inc.Attn: David James53 Williams StreetUpton,MA01568If to Purchaser:City of BozemanAttn: Andrea SurrattPO Box 1230Bozeman, MT 59771If to Purchaser's Agent:Stahly EngineeringAttn: Scott Short851 Bridger Drive, Suite 1Bozeman, MT 59715Any notice shall be effective only upon confirmed delivery.5. No Joint Venture, Partnership, or Other Agency Relationship. Neither Party has anyfinancial or ownership interest in the other Party. This Agreement does not, nor is itintended to, create a joint venture, partnership, or other agency relationship betweenthe Parties.6. Modification/Amendment. This Agreement may be modified or amended only by awritten document signed by both Purchaser and Seller.7. Construction. The Parties shall be deemed to have mutually-participated in thedrafting of this Agreement, and any rule of construction to the effect that ambiguitiesare to be resolved against the drafting Party shall not be applied in the constructionor interpretation of this Agreement.8. Severabilitv. If any term or provision of this Agreement is deemed by a court or othergovernment enforcement authority of competent jurisdiction to be illegal, otherwiseinvalid, or incapable of being enforced, such term or provision shall be excluded toMitigation Credit Purchase Agreement and AcknowledgmentPage 3 of 5148 ^e•-SUPPER MISSOURI MITIGATION BANKSRI MISSOURI HEADWATERS, LLC, SPONSORthe extent of such invalidity or unenforceability, but all other terms and provisionsshall remain in full force and effect.9. Non-Waiver. Failure to insist upon strict compliance with any of the terms orprovisions of this Agreement shall not be deemed a waiver of such terms orprovisions. A waiver of any term or provision of this Agreement must be made inwriting, designated as a waiver, and signed by the Party against whom enforcementof the waiver is sought. Any waiver or relinquishment of any right or power under thisAgreement at any one or more times shall not be deemed a waiver or relinquishmentof such right or power at any other time(s).10. Force Majeure. Neither party will be responsible for any breach of this Agreement ordelay in performance resulting solely from any cause(s) entirely beyond the party'sreasonable control, including without limitation an Act of God, fire, explosion, flood,war, strike, or riot, provided that the nonperforming party uses commerciallyreasonable efforts to avoid or remove such causes of nonperformance and continuesperformance under this Agreement with reasonable dispatch whenever such causesand the natural consequences thereof are removed or otherwise cease to exist.11. Governing Law and Jurisdiction. Unless preempted by federal law, the laws of theState of Montana, without regard to its conflict of law provisions, shall apply to govern,interpret, construe and enforce all of the rights, obligations, and duties of the Partiesarising from or relating to the subject matter of this Agreement. Any dispute arisingfrom or relating to the subject matter of this Agreement shall be adjudicated and/ordetermined in Bozeman, Montana by a mediator (if the Parties agree to mediation)or a court of competent jurisdiction.12. Attorneys Fees and Costs. In a dispute over any attempt to enforce (but not avoid)this Agreement, the prevailing party shall have the right to collect its reasonableattorneys fees, costs and other expenses necessarily incurred because of the disputefrom the other party.13. Counterparts. This Agreement may be executed in counterparts, each of which shallbe deemed to be an original, but all of which, taken together, shall constitute one andthe same Agreement.14. Acknowledgement of Reading, Understanding and Consultation. Each partywarrants, covenants and agrees that it has read every provision of this Agreement,fully understands every provision of this Agreement and the effect(s) thereof, and hashad an opportunity to consult with their freely-chosen attorney or other legal advisorbefore signing this Agreement. Each party further warrants, covenants, representsand agrees that they are entering into this Agreement by their own free choice, andthat they are not subject to or operating under any confusion, misunderstanding,mistake, coercion, or duress.Mitigation Credit Purchase Agreement and AcknowledgmentPage 4 of 5149 ^UPPER MISSOURI MITIGATION BANKSRI MISSOURI HEADWATERS, LLC, SPONSOR15. Entire Agreement. This Agreement constitutes the entire Agreement between theParties with respect to the sale and purchase of mitigation credits related to theImpact Project and any and all claims related thereto, and supersedes any prioragreements, understandings, and/or representations of any kind between the Partiesthat are related to those matters. There are no other promises, conditions,understandings, agreements or representations, either oral or written, between theParties that relate to those matters.AGREED AND ACCEPTED:SellerSRI Missouri Headwaters LLCWith Full Company AuthorityBy:_SignaturePrint Name:Its:Position with CompanyDate:PurchaserAndrea SurrattCity of Bozeman, MontanaWith Full Administrative AuthorityBy:_SignaturePrint Name: Andrea SyrrattIts: City ManaaerPosition within the EntityDate:Mitigation Credit Purchase Agreement and AcknowledgmentPage 5 of 5150