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Home My WebLink AboutWestervelt Ecological Services - Habitat Conservation Credits - 2016File /L- t24 zlY /t¿" Dutchman Creek Conservation Bank AGREEMENT FOR SALE OF MITIGATION CREDITS ITP No. 208L-2014-056-04 Service File No. 08ESMF00-2008-F-1764 This Agreement is entered into this tl*4¡ day o 2016, by and tween WESTERVELT ECOLOGICAL SERVICES (Bank Owner) and CIT SNO (Project plicant), jointly referred to as the "Parties," as follows: RECITALS A. The Bank Owner has developed the Dutchman Creek Conservation Bank located in Merced County, California; and B. The Bank was approved by the U.S. Fish and Wildlife Service (Service) and California Department of Fish and Wildlife (CDFV/) on May 16, 2014, and is currently in good standing with these agencies; and C. The Bank has received approval from the U.S. Fish and Wildlife Service (Service) and California Department of Fish and Wildlife (CDFW) to offer vernal pool fairy shrimp, vernal pool tadpole shrimp, Conservancy fairy shrimp, San Joaquin kit fox, California tiger salamander, western spadefoot toad, Swainson's hawk, and westem burrowing owl credits for sale as compensation for the loss of federally listed vernal pool habitats as specified in the Dutchman Creek Conservation Bank Enabling Instrument (Bank Agreement); and D. Project Applicant is seeking to implement the project described in Exhibit "A" attached hereto (Project), which would unavoidably and adversely impact California tiger salamander habitat, and seeks to compensate for the loss of California tiger salamander habitat by purchasing California tiger salamander credits from Bank; and E. Project Applicant has been authorized by CDFW Incidental Take Permit No. 2081- 2014-056-04, to purchase from the Bank 0.47 VPFS, VPTS, COFS & CTS (CDFW - approved Covered Species breeding habitat) credÍts, 1.18 VPFS, VPTS, & CTS/WSFT (CDFW - approved Covered Species breeding habitat) credits, and 16.38 SJKF, BUOW, SWHA & CTS/WSFT (CDFW - approved Covered Species upland refugia habitat) credits upon confirmation by the Bank Owner of credit availability/adequate balance of credits remaining for sale; and F. Project Applicant desires to purchase from Bank and Bank desires to sell to Project Applicant 0.47 VPFS, YPTS, COFS & CTS (CDFW - approved Covered Species breeding habitat) credits, 1.18 VPFS, VPTS, & CTS/WSFT (CDFW - approved Covered Species breeding habitat) credits, and 16.38 SJKF, BUOW, SWHA & CTS/WSFT (CDFW - approved Covered Species upland refugia habitat) credits; NOV/, TI{EREFORE, TIIE PARTIES AGREE AS FOLLOIWS: 1. Bank hereby sells to Project Applicant and Project Applicant hereby purchases from Bank 0.47 YPFS, VPTS, COFS & CTS (CDFW - approved Covered Species breeding habitat) credits, 1.18 VPFS, VPTS, & CTS/WSFT (CDFW - approved Covered Species breeding habitat) credits, and 16.38 SJKF, BUOIV, SWHA & CTS/\rySFT (CDFW - approved Covered Species upland Dutchman Creek Conseruation Bank Credit Sales Agreement refugia habitat) credits for the purchase price of $247,500 for the breeding credits and $152,000 for the upland credits, totaling $399,500. The Bank will then deliver to Project Applicant an executed Bill of Sale in the manner and form as attached hereto and marked Exhibit "8". The purchase price for said credits shall be paid by cashier's check or, at the option of Bank, wire transfer of funds according to written instructions by Bank to Project Applicant. 2. The sale and transfer herein is not intended as a sale or transfer to Project Applicant of a security, license, lease, easement, or possessory or non-possessory interest in real property, nor the granting of any interest of the foregoing. 3. Project Applicant shall have no obligation whatsoever by reason of the purchase of the Credits, to support, pay for, monitor, report on, sustain, continue in perpetuity, or otherwise be obligated or liable for the success or continued expense or maintenance in perpetuity of the credits sold, or the Bank. Pursuant to the Bank Agreement and any amendments thereto, Bank shall monitor and make reports to the appropriate agency or agencies on the status of any Credits sold to Project Applicant. Bank shall be fully and completely responsible for satisffing any and all conditions placed on the Bank or the Credits by all state or federal jurisdictional agencies. 4. The Credits sold and transferred to Project Applicant shall be non-transferable and non- assignable, and shall not be used as compensatory mitigation for any other Project or purpose, except as set forth herein. 5. Project Applicant hereby commits to purchase the Credits and in association therewith shall tender payment for the Credits no later than 30 days from the date of this Agreement. 6. Upon purchase of the credits specified in paragraph D above, the Bank shall submit to the parties listed in the Notices section of the Bank Agreement / Bank Enabling Instrument, copies of the: a) Agreement for Sale of Credits; b) Bill of Sale; c) Payment Receipt; and d) an updated ledger. The updated inventory I ledger must detail: i) Project Applicant; ii) Project Name; iii) Status (sale complete/sale not complete); iv) Credit Sale Date; v) Service File Number; vi) U.S. Army Corps of Engineers File Number (if applicable); vii) Total Number of Credits Authorized to Sell; viii) Total Number of Credits Sold to Date (inclusive); and ix) Balance of all Credits Available. The inventory / ledger should include all sales data from bank opening/establishment to the present. IN 'WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written. BANK: Westervelt Ecological Services, LLC Dutchman Creek Conservation Bank By: PROJECT APPLIGANT: City of Fresno ATTEST WONNE SPENCE CMC City Clerk APPROVED AS TO FORM Deputy City Attorney UNITED STATES FISH AND WILDLIFE SERVICE: This Agreement fulfills a portion of the Project Applicant's proposed Galifornia tiger salamander habitat conservation measures, as described in the Service's Biological Opinion; Service File Number 08ESMF00-2008-F-1764 dated November 24,2015. The Service verifies that the Dutchman Creek Conservation Bank is in good standing as of the date of this Agreement. THOMAS C DOUGLAS T. SLOAN By: Sacramento Fish and Wildlife Office Date: 4 Exhibit "A" DESCRIPTION OF PROJECT TO BE MITIGATED The City of Fresno seeks to implement the Raw'Water Pipeline Project in central Fresno County. The project will involve the construction of an underground raw water pipeline which will convey raw (untreated) water from the existing Friant-Kern Canal to the existing City of Fresno surface water treatment facility. Specifically, the Project will include: 1) construction of a 4.6-mile long, 60-inch diameter, underground, gravity-flow pipeline within a 60.84-acre construction easement (Project Area); 2) connecting the new underground pipeline to the existing canal and surface water treatment facility; 3) installing the aboveground flow/surge control, airlvacuum release, and corrosion testing appurtenances along its length; 40 construction the hydropower plant at the surface water treatment facility; 5) constructing a compacted gravel access roadway over portions of the pipeline; and 6) Operation and Maintenance (O&M) of the new underground pipeline. Although it is considered unlikely, O&M could include 7) activities to expose and repair the pipeline in the event of a failure at some point during the term of the ITP' {. * *,F 'r. Exhibit "B" BILL OF SALE CDFW ITP No. 2081-2014-056-04 Service File No. 08ESMF00-2008-F -17 64 In consideration of $2 47,500 for the breeding credits and $152,000 for the upland credits, totaling $399,500, receipt of which is hereby acknowledged,llestervelt Ecological Services does hereby bargain, sell and transfer to City of Fresno (Project Applicant), 0.47 \rPFS, VPTS, COFS & CTS (CDFW - approved Covered Species breeding habitat) credÍts, 1.18 YPFS, VPTS, & CTS/WSFT (CDFW - approved Covered Species breeding habitat) credits, and 16.38 SJKF, BUOW, SWHA & CTS/WSFT (CDFW - approved Covered Species upland refugia habitat) credits in the Dutchman Creek Conservation Bank in Merced County, California, developed, and approved by the U. S. Fisþ and Wildlife Service and California Department of Fish and Wildlife. 'Westervelt Ecological Services represents and warrants that it has good title to the credits, has good right to sell the same, and that they are free and clear of all claims, liens, or encumbrances. 'Westervelt Ecological Services covenants and agrees with the buyer to warrant and defend the sale ofthe credits hereinbefore described against all and every person and persons whomsoever lawfully claiming or to claim the same, DATED: 'Westervelt Ecological Services, LLC Dutchman Creek Conservation Bank By: Exhibit "C" Dutchman Creek Conservation Bank PAYMENT RECEIPT PARTICIPANT INFORMATION Name: Cþ of Fresno, DPU, Water Division Address: 2101 G Street, Building A Fresno, C1.93706 Telephone: (559) 621-1622 Contact: MichaelCarbajal,Manager PROJECT INF'ORMATION Project Description: Raw Water Pipeline Project CDFW Permit Number: ITP No. 2081-2014-056-04 Service File No. 08ESMF00-2008-F-1764 SpeciesÆ{abitatAffected: Californiatiger salamander habitat Credits to be Purchased: 0.47 VPFS, VPTS, COFS & CTS (CDFW - approved Covered Species breeding habitat) credits, 1.18 VPFS, VPTS, & CTS/WSFT (CDFW - approved Covered Species breeding habitat) credits, and 16.38 SJKF, BUOW, SWHA & CTSAMSFT (CDFW - approved Covered Species upland refugia habitat) credits Payment Amount: 5247 ,500 for the breeding credits and $ 1 52,000 for the upland credits, totaling $399,500 Project Location: North of the City of Clovis County: Fresno County PAYMENT INFORMATION Payee: Westervelt Ecological Services, LLC Payer: City of Fresno Amount: Three Hundred and Ninety-Nine Thousand Five Hundred Dollars Method of payment: Cash Check No. Money Order No. Received by: Name: Date: (Signature) Title: