HomeMy WebLinkAbout2010-073 Terra Technologies RESOLUTION R-2010-073
A RESOLUTION ACCEPTING THE PROPOSAL OF TERRA TECHNOLOGIES RELATED TO
MODIFICATION OF US ARMY CORP OF ENGINEERS WETLANDS MITIGATION PERMIT
2007-7625, AUTHORIZING TERRA TECHNOLOGIES TO SUBMIT AN APPLICATION WITH
THE US ARMY CORPS OF ENGINEERS TO MODIFY PERMIT 2007-1625 ON BEHALF OF
THE CITY, APPROVING A WETLANDS MITIGATION CREDIT AGREEMENT BETWEEN THE
CITY AND TERRA TECHNOLOGIES, AND AUTHORIZING EXECUTION OF A
CONSERVATION EASEMENT AGREEMENT WITH THE MIDWEST MITIGATION
OVERSIGHT ASSOCIATION.
WHEREAS, the City received a US Army Corps of Engineers (USACE) permit for
wetland mitigation in order to develop certain wetland areas located within the City; and
WHEREAS, the City has acquired certain rights to create new wetlands near Farley,
Missouri, known as the Horseshoe Lake site; and
WHEREAS, since issuance of the USACE permit for wetland mitigation to the City, new
mitigation alternatives are available which include the ability to purchase credits from a local
mitigation bank; and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to purchase
4.45 acres of wetland credRs from the Sni-a-Bar Wetland and Stream Mitigation Bank to satisy
the original requirement of 3.30 acres of wetland creation and 2.3 acres of upland buffer
creation; and
WHEREAS, the Board of Aldermen find it is in the best interest of the City to preserve an
additional 3.7 acres of existing emergent wetlands and wooded riparian edge at the Horseshoe
Lake wetlands creation site; and
WHEREAS, it is necessary to authorize Terra Technologies to seek an amendment to
the permit issued by USACE and further enter into a Mitigation Agreement with Terra
Technologies and the Midwest Mitigation Oversight Association for such purposes;
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE
CITY OF RIVERSIDE, MISSOURI, AS FOLLOWS:
THAT the proposal of Terra Technologies to submit a request for permit modification to
the USACE and the Missouri Department of Natural Resources in the maximum not-to exceed
amount of $12,630 is hereby authorized and approved in substantially the same form as
attached hereto, marked Exhibit "A" and incorporated herein by reference;
FURTHER THAT Terra Technologies is hereby authorized and approved to act as
registered agent for the City to communicate with the USACE regarding compliance with
Section 401 and 404 requirements and to seek permit modification regarding mitigation
requirements for Permit 2007-1625 as set forth in Exhibit "B" attached hereto and incorporated
herein by reference;
FURTHER THAT the Mitigation Credit Agreement by and between Terra Technologies
and the City of Riverside in the amount of $178,000 is hereby authorized and approved in
substantially the same form as attached hereto, marked Exhibit "C" and incorporated herein by
reference;
RESOLUTION R-2010-073
FURTHER THAT execution of a conservation easement with the Midwest Mitigation
Oversight Association is hereby authorized and approved;
FURTHER THAT execution and delivery of all such documents in connection with the
transactions contemplated by this Resolution are hereby ratified and confirmed, Community
Development Director Mike Duffy is authorized to execute and deliver such documents on
behalf of the City and the City shall, and such other officers, representatives and agents of the
City are hereby authorized and directed to take such further action, and execute and deliver
such other documents and instruments as may be necessary or desirable to carry out and
comply with the intent of this Resolution, and to carry out, comply with and perform the duties of
the City with respect to the agreements and easements described herein.
PASSED AND ADOPTE �r the Board o A ermen and APPROVED by the Mayor of the
City of Riverside, Missouri, the —tiay of , 2010.
1
Ka hleen L. Rose, Mayor
ATTEST:
�–
Robin Littrell, ity Clerk
Approv s to Form:
�_
a omp n, City Attomey
C1TY t�F
����"""'~ �M1SSt}l1Rl
Upstrcem {rom oM7nary.
2950 NW Vivion Road
Riverside, Missouri 64150
MEMO DATE: October 13, 2010
AGENDA DATE: October 19, 2010
• TO: Mayor and Board of Aldermen
FROM: Mike Duffy, Community Development Director
RE: Wetland Mitigation
BACKGROUND:
The City received a Corps of Engineers (USACE) permit for wetland mitigation in October, 2009. At that
time, the City was given until 2014 to complete mitigation activities at the City's wetland bank in Farley.
During the process of developing a"Request for Proposals" to complete the work, staff had discussions with
the USACE about the project and alternatives. At that time Doug Berka, Senior Regulatory Specialist,
indicated that the USACE had approved an existing wetland bank in the metro area and would consider
allowing the City to purchase credits from the bank rather than construct and monitor iu own project.
Conversations with the approved wetland bank owner, Terra Technologies, indicated that the City may be
able to complete the project in less time and at less cost by pursuing this alternative. Aker additional
discussions with the USACE and the City, Terra Technologies has provided the attached proposal for
purchase of wetland credits, modification of the existing permit and purchase of a conservation easement.
The cost and time savings of this option, as well as the long term liability of monitoring and maintenance,
makes this proposal very attractive for the City.
RECOMMENDATION:
Approve the Ordinance purchasing wetland credits from Terra Technologies and authorizing Terra
Technologies to finalize permitting activities.
BUDGETARYIMPACT:
Total cost of the agreement is $190,630. The City budgeted $300,000 for wetland mitigation. To date,
$55,528 has been spent, leaving $244,472.
TERRA TECHNOLOGIES
Tuesday, October 12, 2010
Mr. Mike Duffy, Directar
Community Development Department
2950 NW Vivion Road
Riverside Missouri 64150
Re: Request for Authorization
Section 404/401 Permit Modification (2007-1625)
Riverside Platte County Missouri
Dear Mr. Duffy:
This proposal seeks your authorization to submit for modification of the aforementioned Clean Water Act
Section 404/401 permit in order to satisfy the requirement for mitigation in a cost effective and expedient
manner. Currently, provisional requirements in the pernut require the City of Riverside to create new
wetlands at the Horseshoe Lake site, and monitar the success of weUands for a period of 7-]0 yeazs.
After the 404/401 permit was issued by the Corps of Engineers and Missouri Department of Natural
Resources, new mitigation altematives aze available to applicants including the ability of purchasing
credits from a local mitigation bank. The purchase of credits from a mitigation bank is typically more
economical than the creation and monitoring of new wetlands. Once credits aze purchased, the applicant
has no furtlier liability associated with mitigation.
After receipt of a formal submittal by the City of Riverside, Mr. Doug Berka, Senior Regulatory
Specialist with the US Army Corps of Engineers has verbally agreed to modify the designated permits as
follows;
(1) The City of Riverside will purchase 4.45 acres of wetland credits from the Sni-a-
Baz Wetland and Stream Mitigation Bank to satisfy the original requirement of 3.30
acres of wetland creation and 23 acres of upland buffer creation.
(2) The City of Riverside will preserve 3.7 acres of existing emergent wetlands and
wooded riparian edge at the Horseshoe Lake site. Signage will be installed around
the boundary in satisfaction of Corps of Engineers requirements. A conservation
easement will be granted by the City of Riverside to the Midwest Mitigation
Oversight Association for independent oversight of proper[y protection. The
easement will be recorded against the deed at the Platte County Courthouse.
The Corps of Engineers utilizes a standazd conservation easement format far use by all permit holders.
For each specific project, the easement must contain an exhibit showing the boundaries of the easement
with accompanying legal description in a format suitable for recording with the Recorder of Deeds at the
local courthouse.
1920 W. '143`" St. Suite 140 • Leawood, KS 66224
Phone:913-385-9560 • F�x:913-385-5295
htm://www.rerretechnoloeies.com . e-mail: terralech(a�terretechnoloaies.com
TERRA TECHNOLOGIES
The conservation easement requires assignment to an independent third parry for perpetual oversight. Our
firm works with the Midwest Mitigation Oversight Association Incorporated (MMOA), a local non-profit
conservation group of volunteers who accept such easements for a single lump sum or annual fee. Their
organization is required to supervise the property annually for a period of 50 yeazs. Their typical lump
sum fee for accepting easements is five thousand ($5,000) dollars. Annual fees are usually five hundred
($500) per yeaz in lieu of the lump sum fee. More information about the MMOA can be found at
www.midwestmoa.com
SCOPE OF WORK
Qualified individuals will submit the formal request for permit modification to the Corps of Engineers.
We will develop an e�chibit of the mitigation area boundaries and legal description, organize and review
the conservation easement with the MMOA, and deliver all documents to the City and MMOA for
signature. After the document is signed, we will record the document on your behalf and forward a copy
of the easement to the Corps of Engineers and the Missouri DeparGnent of Natural Resources.
We will also purchase and install signage azound the boundary of protected property at the Horseshoe
Lake site.
COST
The scope of wark described in this proposal will be performed on an hourly maximum not-to-exceed
basis of $12,630 (twelve thousand six hundred and thir[y) dollars with a unit breakout as follows;
Task # Item Total Hours CostJHour Total Cost
1 Submit for Pemut Modification 4 $95 $390
2 Conservation Easement Docutnent Develo ment 12 $95 $1,140
3 Pre are Pro e Exhibit with Le al Descri tion 50 $95 $4,750
4 Purchase and Install Si na e 12 Si s $80 $960
5 One Time Easement Fee Payment to Midwest ] Lump $5,000 $5,000
Miti ation Oversi ht Association Sum
6 Recordation at Courthouse 2 $95 $190
7 Reimbursable Ex enses Recordin Fee, Estimated 1 $200 $200
TOTAL $12,630
1920 W. 143'" St. Suite 140 • Leawood, KS 66224
Phone:913-385-9560 . �:913-385-5295
htm�.//wwryv.[erra[echnoloeies.com . e-mail: terralechCdterratechnolooies.com
TERRA TECHNOLOGIES
I will direct staff to proceed on this project upon receipt of your written authorization. Should you have
any questions or require additional information, please do not hesitate to contact me at (913) 652-9210.
Sincerely,
TERRA TECHNOLOGIES, INC
�avid'z. �'h'c�E
David L. Flick
Principal
1920 W. 143 St. Suite 140 . Leawood, KS 66224
hone:913-385-9560 • Fax:913-385-5295
httn�.Uwwwterra�echnoloeics.com • e-mail:terralechCdterratechnoloaies.com
MITIGATION CREDTI' AGREEMENT
This MITIGATION CREDI'I' AGREEMENT (Agreement) is made and entered
into this 12 day of October, 201Q by and between Terra Technologies ("Seller'� and City
of Riverside ("Purchaser").
WITNESSETH:
WHEREAS Purchaser has applied to the U. S. tlnny Corps of Engineers
("USACOE") for a permit under Section 404 of the Clean Water Act to allow impacts to
wetlands in Platte County, Missouri ("ProjecY'). Project Number assigned by the
USACOE is 2007-1625.
WHEREAS, as a condition to the issuance of a permit from the USACOE,
Purchaser is required to compensate for said impacts, end elects to satisfy part of the
requirement through the purchase of mitigation credits in the Sellers' Sni-a-Bar Stream
and WeUand MitigaUon Bank located in Jackson County, Missouri ("Mitigafion Bank").
WfIEREAS, the USACOE has determined that Purchaser shall be required to
purchase credits due to the proposed impacts resulting from the development of the
Project.
NOW, THEREFORE, far and in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency of which
are hereby mutually acknowledged, it is agreed as follows:
1) RECTPALS: The recitals aze hereby incorporated by this reference.
1
2) COMPENSATION: Purchaser shall, subject to the terms and conditions
hereinafter provided, pay to the Seller the sum of One hundred seventv eteht thousand
($178.000) DOLLARS ("Purchase Price") for 4.45 wetland credits at the Mitigation
Bank. The Purchase Price is derived from the unit cost of $40,000 per wetland credi�
The Purchase Price is valid until November 30, 2010. Purchase Price is to be paid in the
manner following:
a) PURCHASE PRICE: Upon signing this Agreement, Purchaser will pay the
total balance due, or $178,000.
b.) INCREASE OR DECREASE IN REOUIRED AMOUNT OF CREDTI'S:
Should the credits required by the USACOE be increased ar decreased
from the time of Agreement execution to the lime Purchase Price has been
paid in full, the Purchaser shall be required to buy the increased amount of
credits from Seller at the same price per credit as originally set out in tivs
Agreement, if Seller has such credits available.
3) SELLERS WARRANT'Y: In consideration of the Purchase Price, Seller
affinns that it has sufficient credits in the Mitigation Bank to satisfy the credits required
by Purchaser and agrees to sell such aedits to Purchaser. It is understood and agreed that
Purchaser shall have no obligation to perform any responsibility or incur any liability
associated with the creation, development, maintenance and/or management of the
Mitigation Bank.
2
4) NOTICES: Any noflces required or pennitted hereunder sha11 be sufficiently
given if delivered by overnight courier, by United States mail, return receipt requested to
the parties hereto ss follows:
If to Seller: Terra Technologies
1920 West 143xd Street, Suite 140
Leawood, KS 6b224
Attn: Mr. David Flick
If to Purchaser: City of Riverside
2950 NW Vivion Road
Riverside MO 64150
Attn: Mike Duffy
Any notice given pursuant hereto by overnight courier shall be effective as of delivery;
any notice given pursuant hereto by United States mail, return receipt requested, shall be
effective as of the flurd business day following its posting and any notice given pursuant
hereto by facsimile shall be effective as of receipt of confirmation by the sending pariy.
5) PRIOR AGREEMENTS: This Agreement shall supersede any and all prior
understandings and agreements between the parties hereto, whether written or oral, with ,
respect to the subject matter hereof and may be amended only by a written instrument
executed by or on behalf of both Seller and Purchaser.
6) APPLICABLE LAW: Purchaser shall be contractua(ly bound to this
Agreement, which shall be govemed by the laws of the state of Missouri and subject to
the requirements of any applicable federal law or regulation. Changes in federal, state or
3
local laws, however, which might have otherwise impacted this Agreement shall not be
enforced retroactively after execution of tlus Agreement.
7) ATTORNEY'S FEES: In the event any action, suit, or other proceeding at law
or in equity is brought to enforce the covenant and agreements contained in tlus
Agreement or to obtain monetary damages for breach thereof, and such action results in
an award oF judgment for monetary damages, or the granting of any equitable relief in
favor of any patty hereto, all expenses, including reasonable attorney's fees, of the
successful party in such action, suit, or other proceeding shall, upon demand of such
party, be paid by the other party.
8) CONTRACT ACCEPTANCE: This Agreement is null and void if not executed
within twenty days of the effective date of the Ageement, as stated herein.
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
City of Riverside Missouri
By. ������
Terra Technologies Incorporated
By: �� �
David Flick
5
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A person who ie requlred [o flle an Information ieturn with �the States,
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(fIM to report, for example, income pafd [o yau, real estate craeted a organized in the Uni[ed States or under the laws
trensections, mortgage interest you pald, aequisiUOn or of the llnitetl States, or � �
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contributlons you made to an IRP« - Regulatlons aections 301.7701-6(aJ and 7(� For atlditiodal
U.S. peraon. Use Fortn W-9 only i} you are a U.S. person Informadon.
(incluc➢ng a resident elien), to provtde 7rour eorreet TIN the Speeial rulee tor partnerships. Partnerships that conduct a
person requestirg It (tha requestar) and, vvhen applicable, W: trade� or business in the UnBed States ere generally required
7. Certity that the TIN you are giving is correct (or you are to pey a withholding tax on arry� farei9n paztners' share of
watting far a number ro 6e issued), IncomO from 6udi buslness.�FUMer, in certeln cases where a
2. Certily that you are not subject to backup withholding, or Form W-9 has not been received, a paAnership la requfred to
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U.S. exempt payea. wlthholding tax. Theretore, N you ere a U.S. pereon that Is a
In 3 aGove, If licable, you are elso certi in that as a p��r in a pertnarship conductlng e irade or businesa In the
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U.S, person, your albcable share of any parinership Income eatablish your U.3. atatus and evoid withholding on your
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withhoiding taz on (orelgn padners' share of effectively
connacted inwme. The person who gives Form W-9 to the partnerahfp for
Note. H a requester gives you a fwm other than Form W-9 to P°�oses of establishing its U.S..atatus and avdding
wtthholding on its atlocable share of net Income trom the
requeat your TIN, you must use [he requester's torm Ii it Is partnership conducting a trade or busk�esa in the UnRetl
aubatarrtialy dmllar to thia Fwm W-9. States Is In the foitowing cases:
For tetleral tex purposes, you are considered e person if you � 7he U.S. owner of a disregarded entity and not the entity,
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Cat Na 10231% Form - piav: 11@005)
TERRA TECHNOLOGIES
Tuesday, October 12, 2010
Mr. Doug Berka, Senior Pmject Manager
US Army Corps of Engineers
Regulatory Division Kansas City District
700 Federal Building
601 East 12�' Street
Kansas City Missouri 64106
RE: Permit No 2007-1625
Assignment of Registered Agent
City of Riverside Missouri
Deaz Mr. Berka,
By means of this correspondence and by signatory below, I am retained as the applicanYs registered agent
to communicate with your agency regarding compliance with SecHon 40t and 404 requirements.
Our firm is preparing the requisite submittals to seek permit modification regarding mitigation
requirements for 2007-1625. We expect to complete the endeavor during October 2010.
A notarized statement of authority is attached for your records. Please contact me at 913-385-9560 with
any questions.
Sincerely, Authorized by,
TERRA TECHNOLOGIES INC. City of Riverside Missouri
�'�.✓� �,�
David L. Flick Mike Duffy
Principal Authorized Agent
1920 West 143 SaeeC Suite 140 • Leawood, KS 66224
Phone:913-385-9560 . Fax:913-385-5295
htto:l/a,vw.[ertacechnolceies.rnm • e-maiL• terratechCaDterratechnoloaies.com
TERRA TECHN4LOGIES
STATEMENT OF AUTHORITY
City of Rlverside
By:
Name: Mike Duffy
Title:
STATE OF )
) SS.
COUNTY OF )
On this day of , 2010, before me appeared Mike Duffy, to me personally known,
who being by me duly swom did say that he is a representative of City of Riverside Mlssouri, and that
said individual is suthorized to sign on behalf of said enrity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County
and State aforesaid, the day and yeaz first above written.
Notary Public
My Commission Expires:
1920 West 143 Stree4 Suite I40 • Leawood, KS 66224
Phone:913385-9560 . Fax:913-385-5295
htto:/h�ww.tersatechnobeies.com • e-maiL• terratechC�D.terratechnoloaies.com