HomeMy WebLinkAboutItem 08 Approval of Master Downtown Stormwater Park Permit Mitigation Credit Purchase and Sale Agreement 1V.
ocoee
florida
AGENDA ITEM COVER SHEET
Meeting Date: September 15, 2020
Item # g
Reviewed By:
Contact Name: Stephen C. Krug Department Director:
Contact Number: 6002 City Manager:
' Subject: Master Downtown Stormwater Park Permit Mitigation Credit rc ase and Sale
Agreement. Commissioner Wilsen, District 2.
Background Summary:
The Engineering Design Services for the Commission approved Master Downtown Stormwater System
Project were awarded to GAI Consultants, Inc., (GAI) under RFQ #1803. Part of the design requires
modifying the existing ditch to Starke Lake. The St. Johns River Water Management District (WMD)
permitting process recognizes the existing ditch as a historically natural flow way. The modifications as
designed impact 0.33 acres which require mitigation. Due to the amount the ditch has been altered and
channelized over the years, the impacts to the ditch scored a low functional value of 9 out of 30, or 0.3.
Mitigation required for the 0.33 acre impact is calculated at 0.33 acres x 0.3 functional value = 0.099
0.1 unit of Functional Loss. This requires the City purchase 0.1 credit from a mitigation bank. The two
banks that cover the area are the Blackwater Creek Mitigation Bank and the Wekiva River Mitigation
Bank. The less expensive option of the two banks is to purchase credits at the Blackwater Creek
Mitigation Bank which are $90,000 each, so one tenth will cost $9,000.00.
Public Works is requesting Commission approve the Mitigation Credit Purchase and Sale:Agreement
with Blackwater Creek Mitigation Bank to fulfill the mitigation requirements for the Master Stormwater
Park project's WMD permit. Public Works recommends approval of the purchase of mitigation credits
for$9,000.00. The cost is adequately funded in the Stormwater Division's Capital Outlay budget
• Issue:
Request the City Commission to approve the Mitigation Credit Purchase and Sale Agreement with
Blackwater Creek Mitigation Bank to fulfill the mitigation requirements for the Master Stormwater Park
project's SJRWMD permit.
Recommendations:
Recommend the City Commission approve the Mitigation Credit Purchase and Sale Agreement with
Blackwater Creek Mitigation Bank for $9,000.00 to fulfill the mitigation requirements for the Master
Stormwater Park project's SJRWMD permit and authorize the City Mayor and Clerk to execute said
agreement.
Attachments:
Blackwater Creek Mitigation Bank Mitigation Credit Purchase and Sale Agreement.
Financial Impact:
The cost of the agreement is adequately funded in the Stormwater Division's Capital Outlay budget.
Type of Item: (please mark with an 'k)
Public Hearing Fo Clerk's Dept Use:
Ordinance First Reading A Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
X Commission Approval
Discussion&Direction
Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney N/A
Reviewed by Finance Dept. " e 1�- ,,Q,=n,.�s1 N/A
Review ed by ( ) N/A
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BLACKWATER CREEK MITIGATION BANK
MITIGATION CREDIT PURCHASE AND SALE AGREEMENT
THIS MITIGATION CREDIT PURCHASE AND SALE AGREEMENT
("Agreement") is made on this day of September 2020, by and between
Blackwater Creek Wetlands Mitigation,LLC ("BWC") and City of Ocoee for the
benefit of the City of Ocoee Public Works Department,301 Maguire Road, Ocoee,
FL 34761 (Purchaser").
WITNESSETH
WHEREAS, BWC has obtained Mitigation Bank Permit No. 4-069-92314-1 from
the St. Johns River Water Management District ("SJRWMD") and Permit No. SAJ-2004-
11053 from the U.S. Army Corps of Engineers ("ACOE") to construct, operate, manage,
and maintain the Blackwater Creek Mitigation Bank ("Mitigation Bank"), and to transfer
credits from the Mitigation Bank ("Mitigation Credits") to satisfy the mitigation
requirements of third parties; and
WHEREAS, Purchaser is in the process of obtaining permits for the Ocoee Master
Stormwater Pond project Permit No. 162778-1 from the St. Johns River Water
Management District ("SJRWMD") to impact wetlands under the agency's regulatory
jurisdiction, and which permits will require the Purchaser to provide mitigation. The
Permit Application Number shall be referred to as "Purchaser's Permit" and the SJRWMD
shall be referred to as "Agency".
WHEREAS, the Purchaser is in the process of obtaining Agency approval or the
Agency has approved the use of Mitigation Credits from the Mitigation Bank to fulfill the
mitigation requirements of Purchaser's Permit;
NOW, THEREFORE, in consideration of the premises herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Purchase Price.
BWC hereby agrees to allocate and sell to Purchaser 0.10 Freshwater
Herbaceous Mitigation Credits from the Mitigation Bank to fulfill specific mitigation
requirements of the Purchaser's Permit in consideration of Purchaser's agreement to pay a
total sum of Nine Thousand Dollars and no cents ($9,000.00), at a prorated purchase
price of Ninety Thousand dollars and no cents ($90,000.00) per credit based upon final
permitting agency requirements, ("Purchase Price"), payable in U.S. dollars in cash or
immediately available funds, subject to the terms herein.
2. BWC's Obligations under this Agreement.
a. BWC shall cooperate with the Purchaser and with Agency and other
applicable regulatory agencies to facilitate approval of the transfer of the Mitigation
Credits to the Purchaser to fulfill the pertinent mitigation requirements of Purchaser's
Permits.
b. Upon payment of the full Purchase Price due hereunder, BWC shall
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assume legal responsibility for fulfilling the pertinent mitigation requirements of
Purchaser's Permits consistent with the terms and conditions of its SJRWMD and ACOE
Mitigation Bank Permit. Except as provided in Paragraph 3 below, BWC bears no
responsibility or obligation relating to Purchaser's efforts to secure its necessary
construction permits.
3. Credit Purchase Conditioned on Agency Approval of Use of Mitigation
Credits as Mitigation.
Purchase of the Mitigation Credits under this Agreement is conditioned on
the Purchaser obtaining the approval of the Agency for the use of the Mitigation Credits
to fulfill the mitigation requirements of Purchaser's Permit.
4. Withdrawal of Credits.
a. Upon Purchaser providing to BWC copies of the Purchaser's
Permit, BWC shall submit a request to the SJRWMD to withdraw and transfer mitigation
credits as appropriate pursuant to the Mitigation Credit withdrawal process established in
the BWC's SJRWMD Mitigation Bank Permit.
b. After obtaining approval of the Mitigation Credit withdrawal and
transfer consistent with the provisions the SJRWMD Mitigation Bank Permit and USACE
Mitigation Bank Permit, BWC, at closing, shall provide to the Purchaser a Certificate to
evidence the transfer of the Mitigation Credits from BWC to the Purchaser ("Mitigation
Credit Certificate").
5. Transfer of Credits to Purchaser.
The closing of the sale of the Mitigation Bank Credits to the Purchaser and Purchaser's
Payment of the Purchase Price to BWC shall take place prior of BWC's receipt of
approval of the Mitigation Credit withdrawal, unless extended by other provisions of this
Agreement. All payments shall be paid to the account of Blackwater Creek Wetlands
Mitigation,LLC. Payment shall be forwarded to Blackwater Creek Wetlands
Mitigation, LLC, 151 North Nob Hill Road, Suite 458,Plantation, FL 33324. At the
closing of the sale,Purchaser shall deliver to BWC the payment due, and BWC shall
deliver to Purchaser a Mitigation Credit Certificate.
6. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
7. Applicable Law.
This Agreement shall be construed and enforced in accordance with the
laws of the State of Florida.
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8. Notices.
All notices required or remitted by the Agreement shall be in writing and
shall be sent by Certified or Registered Mail, by national overnight courier service, or
hand-delivered to the address below. Notices shall be deemed delivered and given when
mailed, if mailed; or upon receipt, if delivered by hand or by courier.
Notice to BWC sent to: Blackwater Creek Wetlands Mitigation,LLC
Attn: Robert Miller, CEO
151 North Nob Hill Road, Suite 458
Plantation, FL 33324
rmiller@wetlandsbank.com
With copy to: EcoCredit Marketing
Attn: Kae Hovater
614 East Highway 50, Suite 254
Clermont,FL 34711
kae(a,ecocreditmarketing.com
Notice to Purchaser sent to: City of Ocoee Public Works
Attn: Stephen Krug, P.E.
301 Maguire Road
Ocoee, FL 34761
Skrug@ci.ocoee.fl.us
With copy to: GAI Consultants
Attn: Don J. Silverberg
618 E South Street, Suite 700
Orlando, FL 32801
D.S ilverberg@gai consultants.com
9. No Third-Party Beneficiaries
This Agreement does not confer any benefits to persons or entities who are
not either (a) parties to this Agreement, or (b) successors and permitted assigns of the
parties to this Agreement.
10. Remedies.
Purchaser's failure to pay the full Purchase Price due under this Agreement
and provide the Purchaser's Permits shall constitute the Purchaser's default of this
Agreement. In the event of Purchaser's default hereunder, BWC shall be entitled to
terminate the Agreement and retain all Mitigation Credits reserved or withdrawn on.
Purchaser's behalf. If BWC defaults hereunder, Purchaser's sole remedy shall be to
terminate this Agreement and obtain any Purchase Price paid. The parties agree and
acknowledge that the SJRWMD and ACOE have exclusive jurisdiction to enforce BWC's
compliance with the terms and conditions of their respective permits authorizing the
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Mitigation Bank, and Purchaser agrees it shall not be entitled to sue BWC, and hereby
covenants not to sue BWC, to enforce compliance with the terms and conditions of the
SJRWMD and ACOE Permits.
11. Disputes.
In connection with any legal proceeding between BWC and Purchaser
brought to enforce the terms and conditions of this Agreement, the prevailing party shall
be entitled to recover from the non-prevailing party all costs,' expenses and reasonable
attorneys' and paralegals' fees incurred by said prevailing party in such proceedings,
including all costs, expenses, and reasonable attorneys' and paralegals' fees incurred on
appeal, in administrative proceedings or in any arbitration.
12. Brokers.
Purchaser and BWC represent to each other that neither they nor anyone on
their behalf has dealt with or consulted with any broker, agent, or other person in
connection with this matter, and that no commission or finder's fee will be payable as a
result of the execution of this Agreement or the consummation of the transaction
contemplated hereby. In the event a broker, agent, or other person claims to have dealt
with one of the parties contrary to the foregoing representation, the party with whom the
broker, agent, or other person claims to have dealt or consulted agrees to indemnify and
hold the other party harmless against any such claims or demands, including reasonable
attorneys' fees and costs incurred by such other party.
13. Construction.
This Agreement shall not be construed more strictly against one party than
the other by virtue of the fact that it was prepared by counsel for one of the parties.
14. Interpretation.
In the interpretation of this Agreement, a single number includes the plural,
the words "person" and "party" include corporations,partnerships, firms or
associations whenever the context so requires. Captions of paragraphs and sections
are for convenience and reference only, and the words contained therein shall in no
way be held to explain, modify or amplify or limit the scope or content of the
interpretation, construction or meaning of the provisions of this Agreement.
15. Waiver of Jury Trial.
The parties knowingly, voluntarily and intentionally waive the right to a trial by
jury in respect of any litigation based hereon, or arising out of, under or in connection
with this Agreement, or any document contemplated to be executed in conjunction
herewith, or any course of conduct, course of dealing, statement (whether oral or written)
relating to this Agreement.
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16. Entire Agreement.
The terms and conditions of this Agreement constitute the sole and entire
agreement between the parties with respect to the subject matter hereof. This Agreement
may be amended, modified, or altered only by the written agreement of the parties. This
Agreement supersedes any and all previous oral or written agreements and understandings
relating to the subject matter hereof.
IN WITNESS WHEREOF,the parties hereto have hereunto set their hands and
seals on the dates written below their signatures. Signed, sealed and delivered:
PURCHASER: BLACKWATER CREEK WETLANDS
MITIGATION, LLC
Robert Miller, CEO
Date:
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CITY OF OCOEE SIGNATURE PAGE
Blackwater Creek Mitigation Bank
CITY:
CITY OF OCOEE, FLORIDA
By:
Rusty Johnson, Mayor
ATTEST:
Melanie Sibbitt, City Clerk
(SEAL)
APPROVED BY THE CITY OF OCOEE
COMMISSION AT A MEETING HELD ON
, 20
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA;
APPROVED AS TO FORM AND
LEGALITY this day of
, 20 .
SHUFFIELD, LOWMAN &WILSON, P.A.
By:
City Attorney