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HomeMy WebLinkAbout07-20-20 City Commission Packet Materials - C4. Upper Missouri Mitigation Bank for Davis Ln LS and Norton E Ranch Sewer 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 Davis Lift Station and Norton East Ranch Outfall Sewer Project. MEETING DATE: July 20th, 2020 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 Davis Lift Station and Norton East Ranch Outfall Sewer Project. BACKGROUND: Attached is a copy of the wetland Mitigation Credit Purchase Agreement and Acknowledgment with the Upper Missouri Mitigation Bank (UMMB) for the City’s Davis Lift Station and Norton East Ranch Outfall Sewer 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 0.11 acres either through replacement of wetlands, or purchase of mitigation credits from an approved mitigation bank. The quote from the UMMB is for $12,000 to purchase the mitigation credits. Engineering staff has reviewed the document and found it to be acceptable. UNRESOLVED ISSUES: None ALTERNATIVES: As suggested by the Commission FISCAL EFFECTS: $12,000 from the Wastewater Impact Fee Fund Attachments: Purchase Agreement Report compiled on: 7/6/20 24 UPPER MISSOURI MITIGATION BANK SRI MISSOURI HEADWATERS, LLC, SPONSOR Mitigation Credit Purchase Agreement and Acknowledgment Page 1 of 5 MITIGATION CREDIT PURCHASE AGREEMENT AND ACKNOWLEDGMENT Impact Project: City of Bozeman, WWTP Improvement (Catron/Cattail Cr, wetlands), Gallatin County, (Bozeman), MT Corps. Permit: NWO-2019-01584-MTH Mitigation Bank: Upper Missouri Mitigation Bank, Madison County, Montana This Mitigation Credit Purchase Agreement and Acknowledgment (“Agreement”) is entered into this _____ day of July, 2020, by and between City of Bozeman, Montana (“Purchaser”) and SRI MISSOURI HEADWATERS LLC (“Seller”) in accordance with the recitals and provisions below. RECITALS A. Seller established, owns, operates and maintains an approved wetland and stream mitigation bank (the “Bank”) that is federally-certified by the U.S. Army Corps of Engineers (“ACOE”), the U.S. Environmental Protection Agency, and the U.S. Fish and Wildlife Service, and state-certified by the Montana Department of Environmental Quality and Montana Department of Fish, Wildlife and Parks. B. The Bank consists of over 200 acres of restored and enhanced forested, scrub-shrub and herbaceous wetlands, with a value of over 77 wetland credits, as well as over 20,000 linear feet of restored and protected river, stream and riparian corridor with a value of 144,000 stream credits, respectively. The Bank property is located on the Hamilton Ranch, near Twin Bridges, Madison County, Montana. Bank credits are certified to be sold to private and governmental permittees as compensatory mitigation for unavoidable impacts under Section 404 of the Clean Water Act. C. Purchaser is developing the Impact Project identified above. Pursuant to a determination by the ACOE that compensatory mitigation is necessary to offset unavoidable aquatic resource impacts pursuant to Section 404 of the Clean Water Act, Purchaser is obligated to provide such compensatory mitigation for the Impact Project. D. Therefore, in consideration of the agreements and acknowledgements set forth herein and for other consideration, the receipt and sufficiency of which is hereby mutually acknowledged by the Parties, Seller agrees to sell, and Purchaser agrees to buy, mitigation credits from the Bank in accordance with this Agreement. 25 UPPER MISSOURI MITIGATION BANK SRI MISSOURI HEADWATERS, LLC, SPONSOR Mitigation Credit Purchase Agreement and Acknowledgment Page 2 of 5 PROVISIONS Current Mitigation Credit Need, Price Rate and Payment: Purchaser warrants, covenants, represents and agrees that it currently needs to purchase 0.11 wetland credits from Seller for impact associated with the Impact Project per the ACOE permit NWO-2019-01584-MTH. 1. Purchaser therefore agrees to purchase, and Seller agrees to sell, 0.11 wetland mitigation credits from the Bank in exchange for Purchaser’s payment to Seller in the amount of $12,000.00 (Twelve thousand dollars) for this transaction. Within 30 (thirty) days of the date of this Agreement, Purchaser shall provide the $12,000.00 payment for the 0.11 wetland mitigation credits to Seller by certified funds, payable to: SRI MISSOURI HEADWATERS LLC c/o Swift River Investments, Inc. 53 Williams Street Upton, MA 01568 Notwithstanding the foregoing provisions in this paragraph, if Purchaser finds another seller willing to sell Purchaser 0.11 wetland mitigation credits at a lower price and the credits are verified in writing by ACOE as a valid mitigation solution for the Impact Project, then Seller shall have the option, upon Purchaser’s presentation to Seller of both the competing Mitigation Purchase Agreement and the written verification from ACOE, to sell Purchaser 0.11 wetland mitigation credits for 5% (five percent) less than the competitor’s price. 2. Letter Evidencing Mitigation Credits Transfer and Relief of Mitigation Liability. Upon Seller’s receipt and deposit of the full payment required by paragraph 1 above, Seller shall send a letter to the ACOE confirming Seller’s transfer of 0.11 wetland mitigation credits to Purchaser for the Impact Project. The ACOE’s confirmation that it has received the letter evidencing the transfer of 0.11 wetland mitigation credits shall constitute the final action necessary to relieve Purchaser from liability for the aquatic resource impacts at the Impact Project for which the 0.11 wetland mitigation credits are required. 3. Seller’s Assumption of Mitigation Liability. Following Seller’s receipt and deposit of the full payment required by paragraph 1 above and the ACOE’s confirmation that it has received Seller’s letter evidencing transfer of 0.11 wetland mitigation credits to Purchaser for the Impact Project, Seller shall assume all liability and responsibility for the performance, operation and long-term maintenance of the 0.11 wetland mitigation credits in accordance with the Upper Missouri Mitigation Bank Agreement, to which Seller and ACOE are parties. 26 UPPER MISSOURI MITIGATION BANK SRI MISSOURI HEADWATERS, LLC, SPONSOR Mitigation Credit Purchase Agreement and Acknowledgment Page 3 of 5 4. Notice. Any notices required, permitted, or related to this Agreement shall be given in writing and delivered (a) in person; (b) by certified mail, postage prepaid, return receipt requested; or (c) by a commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices shall be addressed as follows: If to Seller: SRI Missouri Headwaters LLC c/o Swift River Investments, Inc. Attn: David James 53 Williams Street Upton, MA 01568 If to Purchaser: City of Bozeman Attn: City Manager PO Box 1230 Bozeman, MT 59771 If to Purchaser’s Agent: HDR Inc. Attn: Jon Schick 700 SW Higgins Avenue, Suite 200 Missoula, MT 59803-1489 Any notice shall be effective only upon confirmed delivery. 5. No Joint Venture, Partnership, or Other Agency Relationship. Neither Party has any financial or ownership interest in the other Party. This Agreement does not, nor is it intended to, create a joint venture, partnership, or other agency relationship between the Parties. 6. Modification/Amendment. This Agreement may be modified or amended only by a written document signed by both Purchaser and Seller. 7. Construction. The Parties shall be deemed to have mutually-participated in the drafting of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement. 8. Severability. If any term or provision of this Agreement is deemed by a court or other government enforcement authority of competent jurisdiction to be illegal, otherwise invalid, or incapable of being enforced, such term or provision shall be excluded to the extent of such invalidity or unenforceability, but all other terms and provisions shall remain in full force and effect. 27 UPPER MISSOURI MITIGATION BANK SRI MISSOURI HEADWATERS, LLC, SPONSOR Mitigation Credit Purchase Agreement and Acknowledgment Page 4 of 5 9. Non-Waiver. Failure to insist upon strict compliance with any of the terms or provisions of this Agreement shall not be deemed a waiver of such terms or provisions. A waiver of any term or provision of this Agreement must be made in writing, designated as a waiver, and signed by the Party against whom enforcement of the waiver is sought. Any waiver or relinquishment of any right or power under this Agreement at any one or more times shall not be deemed a waiver or relinquishment of such right or power at any other time(s). 10. Force Majeure. Neither party will be responsible for any breach of this Agreement or delay in performance resulting solely from any cause(s) entirely beyond the party’s reasonable control, including without limitation an Act of God, fire, explosion, flood, war, strike, or riot, provided that the nonperforming party uses commercially reasonable efforts to avoid or remove such causes of nonperformance and continues performance under this Agreement with reasonable dispatch whenever such causes and the natural consequences thereof are removed or otherwise cease to exist. 11. Governing Law and Jurisdiction. Unless preempted by federal law, the laws of the State 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 Parties arising from or relating to the subject matter of this Agreement. Any dispute arising from or relating to the subject matter of this Agreement shall be adjudicated and/or determined 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 reasonable attorneys fees, costs and other expenses necessarily incurred because of the dispute from the other party. 13. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. 14. Acknowledgement of Reading, Understanding and Consultation. Each party warrants, 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 has had an opportunity to consult with their freely-chosen attorney or other legal advisor before signing this Agreement. Each party further warrants, covenants, represents and agrees that they are entering into this Agreement by their own free choice, and that they are not subject to or operating under any confusion, misunderstanding, mistake, coercion, or duress. 15. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties with respect to the sale and purchase of mitigation credits related to the Impact Project and any and all claims related thereto, and supersedes any prior agreements, understandings, and/or representations of any kind between the Parties 28 UPPER MISSOURI MITIGATION BANK SRI MISSOURI HEADWATERS, LLC, SPONSOR Mitigation Credit Purchase Agreement and Acknowledgment Page 5 of 5 that are related to those matters. There are no other promises, conditions, understandings, agreements or representations, either oral or written, between the Parties that relate to those matters. AGREED AND ACCEPTED: Seller SRI Missouri Headwaters LLC With Full Company Authority By: Signature Print Name: Its: Position with Company Date: Purchaser City Manager City of Bozeman, Montana With Full Company Authority By: Signature Print Name: Its: Position with Company Date: 29