Item #05 Approval of Mitigation Credit Purchase and Escrow Agreement for the Environmental Impact of the Consumer Court Lift Station #62 Project ocoee
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AGENDA ITEM COVER SHEET
Meeting Date: August 18, 2015
Item #
Reviewed By:
Contact Name: Charles K. Smith, P.E. Department Director: Charle, K !, 4,,4
Contact Number: 407-905-3159 City Manager: Robert Fra 7Jfj2?j
Subject: Approval of Mitigation Credit Purchase and Escrow Agreement for the Environmental
Impact of the Consumer Court Lift Station #62 Project (District 3 — Commissioner Johnson)
Background Summary:
At the City Commission meeting held on June 16, 2015,the Consumer Court Lift Station#62 Construction Project
was approved and funded by the City. The construction of this lift station is necessary to address operational
issues and to increase system capacity of the current sanitary sewer collection system on the south side of the
roadway west of Bluford Avenue, and the north side of the roadway west of Maguire Road. The sanitary systems
servicing those areas currently flow to the east, combine, and then convey the flow to Lift Station #7. The
construction of Lift Station #62 will redirect the flow west, reducing the flows to the remaining system.
As is customary for these types of projects, the Utilities Department moved through the permitting process with
various agencies, including the Florida Department of Environmental Protection (FDEP), the St. Johns River
Water Management District (SJRWMD) and the United States Army Corps of Engineers (USACOE) for the
wetlands impact and mitigation. As part of the environmental permitting process, approval of the permit shall be
conditioned upon the purchase of credits as compensatory mitigation of the wetlands. The construction of
Consumer Court Lift Station #62 will impact approximately 957 square feet of the wetlands located to the south
of the project, and, therefore, requires a .02 credit purchase from the Wekiva River Mitigation Bank, LLC. for the
price of$2,200.00.
Issue:
Should the City Commission accept and authorize the Mayor to execute the Mitigation Credit Purchase and
Escrow Agreement to mitigate the environmental impact to the wetlands caused by the construction of Consumer
Court Lift Station #62, and purchase .02 credits from the Wekiva River Mitigation Bank, LLC. for the price of
$2,200.00?
Recommendations
Staff recommends that the City Commission accept and authorize the Mayor to execute the Mitigation Credit
Purchase and Escrow Agreement to mitigate the environmental impact to the wetlands caused by the construction
of Consumer Court Lift Station#62, and purchase .02 credits from the Wekiva River Mitigation Bank, LLC. for the
price of$2,200.00.
Attachments:
1) Mitigation Credit Purchase and Escrow Agreement
2) Wetlands Impact Drawing
3) Wekiva River Mitigation Bank Invoice
Financial Impact:
The proposed funding for the purchase of the .02 fresh water credits from the Wekiva River Mitigation Bank, LLC.
for the price of$2,200.00 is adequately funded in the S.R. 50 Project, 408-535-10-6302 (City Project No. 31701).
Type of Item: (please mark with an "x")
Public Hearing For Clerk's Dept Use:
Ordinance First Reading X Consent Agenda
Ordinance Second Reading Public Hearing
Resolution Regular Agenda
Commission Approval
Discussion&Direction
X 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. ,�(� N/A
Reviewed by 0
N/A
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MITIGATION CREDIT PURCHASE AND ESCROW AGREEMENT
THIS MITIGATION CREDIT PURCHASE AND ESCROW AGREEMENT
(hereinafter "Agreement") is made this day of , 2015, by and between
Wekiva River Mitigation Bank, LLC., (hereinafter "Seller"), whose mailing address is P.O.
Box 540285 Orlando, Florida 32854 and City of Ocoee (c/o Charles Smith, P.E.) (hereinafter
"Buyer"), a municipal corporation existing under the laws of the State of Florida, whose mailing
address is 150 N. Lakeshore Drive, Ocoee, Florida 34761 (hereinafter collectively the"Parties").
WITNESSETH:
WHEREAS, the Seller maintains an ecological restoration project located in Lake
County, Florida(hereinafter referred to as the "Mitigation Property");
WHEREAS, Seller owns a mitigation bank with freshwater mitigation credits
(hereinafter "Credits") available for transfer and sale under Florida Department of
Environmental Protection (hereinafter"FDEP") Permit No. 0234803-001;
WHEREAS, as part of the environmental permitting process involving the St. Johns
River Water Management District (hereinafter "SJRWMD") and the USACOE it is anticipated
that Buyer's permit from the aforereferenced respective governmental agencies will be
conditioned upon purchase of Credits as compensatory mitigation;
WHEREAS, Seller agrees to sell and Buyer agrees to purchase Credits available from
the Mitigation Property on the terms and conditions below to be used to offset wetland impacts
associated with the proposed development of project known as Lift Station No. 62 (hereinafter
"Project") FDEP Application No. 48-336138-001;
WHEREAS, the number of Credits to be purchased by Buyer has been determined by
Buyer after consultation with its advisors to be 0.02 freshwater forested credits; and
WHEREAS, Seller requires as part of this Agreement for Buyer to remit this Agreement
and funds to Seller via Mitigation Marketing in order to allow Seller to submit a minor permit
modification (hereinafter "Minor Permit Modification") for a debit of 0.02 Credits from the
seller's FDEP ledger so that the aforesaid respective Credits can be transferred to the Buyer.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto, each intending to be legally bound, do hereby
warrant and agree as follows:
1. Terms of Purchase. The purchase price (hereinafter "Purchase Price") of the Credits is
Two Thousand Two Hundred dollars U.S. ($2,200.00) payable in check, wired federal
funds or cashier's check. Seller agrees to reserve and sell to the Buyer the
aforementioned Credits under this Agreement as may be required by the SJRWMD. A
payment of Two Hundred Twenty dollars U.S. ($220.00) (hereinafter "Deposit") shall
accompany this agreement. All payments shall be paid to the account of Wekiva River
Mitigation Bank, Escrow and submitted via Mitigation Marketing P.O. Box 540285
Orlando, Florida 32854.
2. Reservation Period. This reservation shall commence upon the signing of this
Agreement and expire on October 24, 2015.
3. Covenants of Seller. Seller covenants and agrees that it shall comply with all conditions
and continuing requirements set forth in Seller's permits from the FDEP and USACOE
for the Mitigation Property. Responsibility for compliance with the Seller's permits as to
mitigation on the Mitigation Property shall solely be the responsibility of Seller. The
provisions of this paragraph 3 shall survive the closing hereunder.
4. Deposit. Unless otherwise described herein or otherwise agreed, the Deposit shall be
credited against the Purchase Price paid by Buyer for the Credits. The Deposit shall be
deposited into an escrow account. Said Deposit shall be non-refundable to Buyer except
in the case of breach by Seller as set forth in Paragraph 8 below.
5. Conditions of Transfer of Credit. Upon payment of the total Purchase Price and
receipt of buyers permits, Seller shall provide to Buyer within ten (1 0) days thereafter
documentation as required by the FDEP and USACOE to effectuate the transfer of
Credits as per the conditions of the Buyer's permit. (i.e. copy of signed minor permit
modification request) for the Project. Buyer is hereby notified that the transfer of Credits
generally takes approximately thirty(30)to sixty(60)days to complete.
6. Debit of Credits and Transfer. Upon notification of the debit of the Credits by the
FDEP and USACOE, the same shall be transferred to Buyer together with document(s)
evidencing such transfer of Credits. The Parties hereby agree that evidence of the Credits
being transferred shall be the receipt by Seller from the FDEP of the Minor Permit
Modification to its Environmental Resources Permit (hereinafter "ERP") and/or ledger
• evidencing the debit of credits and the withdrawal and transfer letter from USACOE.
Once transfer has been completed, it is acknowledged that seller's payment is fully
earned.
7. Release of Escrow. Upon receipt by Escrow Agent of above evidence acknowledging
the transfer of mitigation credits, obligations to buyer, it is acknowledged that the release
of funds deposited with Escrow Agent to Seller is authorized. The Escrow Agent shall,
without further direction of any party, disburse to Seller or its appointee all sums held in
escrow under this Agreement(hereinafter"Escrow Property").
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8. Breach of Seller. If, for any reason. the Credits have not been conveyed to Buyer due to
breach by Seller of the Agreement, then the Escrow Agent shall disburse the deposit to
the buyer upon written notice of said breach. Notwithstanding the foregoing, Seller shall
have twenty (20) days to remedy said breach; and if not cured the Escrow Agent shall
refund deposit to Buyer.
9. Internleader. If the Parties shall be in disagreement about the interpretation of this
Agreement, or about their respective rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may, in its sole
discretion, continue to hold the funds until it receives joint directions signed by both
parties or file an action of interpleader to resolve said disagreement. The Escrow Agent
shall be indemnified for all costs, including reasonable attorneys' fees, in connection with
the aforesaid interpleader action, and shall be fully protected in suspending all or a part of
its activities under this Agreement, consistent with Florida law, until a Final Judgment in
the interpleader action is received.
10. Duties of Escrow Agent. The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein and no implied duties or obligations shall be read into this
Agreement against the Escrow Agent. The Escrow Agent shall only be liable for actual
fraud or gross negligence.
11. Reliance of Escrow Agent. The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a writing or
instrument, and may assume that any person purporting to give any writing, notice,
advice or instructions in connection with the provisions hereof has been duly authorized
to do so.
12. Indemnification of Escrow Agent. To the extent not prohibited by law. Buyer and
Seller hereby agree to indemnify the Escrow Agent and hold it harmless from any and all
claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other
expenses, fees or charges of any character or nature which it may incur or with which it
may be threatened by reason of its acting as Escrow Agent under this Agreement, and in
connection therewith, to indemnify the Escrow Agent against any and all expenses.
13. Successors and Assigns. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of the Parties hereto.
14. Applicable Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida.
15. Notices. All notices required by this Agreement shall be in writing and shall be sent by
certified or registered mail or hand delivered to the addresses set out below. Notices shall
be deemed delivered and given when mailed, if mailed, or when delivered by hand, upon
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receipt.
Notices to Seller shall be sent to: Wekiva River Mitigation Bank, LLC
P.O. Box 540285
Orlando, Florida 32854
With a copy to: Mitigation Marketing, LLC
Attn: Alexis Preisser
P.O. Box 540285 USPS
Orlando, Florida 32854
Notices to Buyer shall be sent to: City of Ocoee
Attn: Mr. Charles Smith
1800 A.D. Mims Road
Ocoee, Florida 34761
(305)441-9059 phone
With a copy to: Thomson Environmental Consulting
Attn: Mr. Joel Thomson
(407) 374-3681 phone
joelthomsonenv.com
Notice to Escrow Agent shall be sent to:
Harris, Harris, Bauerle. Ziegler& Lopez
Attn: Stumpy Harris
250 South Orange Avenue
Suite 10013
Orlando,Florida 32801
407-843-0404 phone
407-843-0444 fax
Any notice or demand so given, delivered or made by United States mail shall be
deemed so given,delivered or made on the third 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. All Parties agree that any notice may be faxed to any
of the above Parties or their attorneys. Buyer and Seller may from time to time notify the
other of changes with respect to whom and where notice should be sent by sending
notification of such changes pursuant to this paragraph.
16. 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
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relied upon any representation not especially herein contained. This Agreement shall not
be binding upon the Seller and Buyer until executed by an officer of the Seller and Buyer,
if applicable its corporate seal affixed, and an executed copy of the Agreement has been
delivered to the Buyer and Seller.
17. 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. No failure by Buyer or Seller to insist
upon the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy upon a breach thereof shall constitute a
waiver of any such breach or of such any other covenant, agreement, term or condition.
Any party hereto, by notice, may but shall be under no obligation to, waive any of its
rights or any conditions to its obligations hereunder, or any duty, obligation or covenants
of any other party hereto. No waiver shall affect or alter this Agreement, but each and
every covenant, agreement, term and condition of this Agreement shall continue in full
force and effect with respect to any other then existing or subsequent breach thereof
18. 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,to the extent not prohibited by law, 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.
19. 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.
20. Partial Invalidity. In case any term of this Agreement shall be 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.
21. Calculation of Time. Time periods of five (5) days or less shall be computed without
including Saturdays, Sundays, or national legal holidays, and any time period existing on
a Saturday. Sunday or national legal holiday shall be extended until 5:00 p.m. on the next
business day.
22. Effective Date. This Agreement is effective on the date on which the last of the parties
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signs this Agreement. If more than 30 days have transpired between the first and last
signature, this agreement is null and void.
23. Typewritten or Handwritten Provisions. Handwritten provisions and/or typewritten
provisions inserted in this Agreement, which are initialed by both parties. shall control
over the printed provisions in conflict therewith.
24. 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.
25. Time is of the Essence. Time is of the essence under the terms of this Agreement.
26. 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.
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SIGNATURE PAGES FOR MITIGATION CREDIT PURCHASE AND ESCRO
AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, to
become effective as of the date and year first above written and in accordance with the terms of
this Agreement.
Signed, sealed and delivered in the presence of:
SELLER:
WEKIVA RIVER MITIGATION BANK,LLC
Witness Si Yre Mr. D iis K. Benbow, Managing Member
//iavi .49.- L;(7/ -
Witness Name
Executed on 7 2 8 . 2015
BUYER:
CITY OF OCOEE
By: Please See City of OnnAe Signature Page
Witness Signature Mr. Charles Smith, P.E.
As Its: Utilities Director
Witness Name Executed on , 2015
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CITY OF OCOEE
By:
Mayor
ATTEST:
Beth Eikenberry, City Clerk
(SEAL)
APPROVED BY THE CITY OF OCOEE
COMMISSION IN A MEETING HELD ON
, 2015
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
ACKNOWLEDGMENT BY ESCROW AGENT
Receipt is hereby acknowledged of the deposit sum of
Dollars($ ) from Buyer and, if by check, such receipt is subject to clearance.
DATED this day of , 2015.
Harris, Harris,Bauerle,Ziegler& Lopez
By:
Mr. Stumpy Harris
Project Name:
LIFT STATION NO. 62
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ACKNOWLEDGMENT BY ESCROW AGENT
Receipt is hereby acknowledged of the final balance of
Dollars($ ) from Buyer and, if by check, such receipt is subject to clearance.
DATED this day of , 2015.
Harris, Harris, Bauerle, Ziegler, & Lopez
By:
Mr. Stumpy Harris
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WEKIVA RIVER MITIGATION BANK
P.O.Box 540285 Telephone(407)481-0677
Orlando,FL 32854 Fax(407)648-3866
INVOICE
Date: July 27, 2015
Mr. Charles Smith, P.E.
Utilities Director
City of Ocoee
1800 A.D. Mims Road
Ocoee, Florida 34761
Sale Number-Project Name Balance Due
WRMB State Credits
City of Ocoee $2,200.00
Lift Station No. 62
0.02 Forested Credits
FDEP Permit No. 48-336138-001
Please make check payable to: Wekiva River Mitigation Bank
Send to:
Mitigation Marketing LLC
Mailing:
P.O. Box 540285
Orlando, Florida 32854