AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 1
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project
AGREEMENT FOR SALE OF
MITIGATION CREDITS BY
STILLWATER PLAINS MITIGATION BANK, INC.
By: Seller: Stillwater Plains Mitigation Bank, Inc.
Seller's Address: P.O. Box 52, Palo Cedro, CA 96073
Buyer: City of Marysville
Buyer's Address: 526 C Street
Marysville, CA 95901
Effective Date: _________________, 2022
File Service Nos: USFWS 08ESMF00-2021-F-1145-1
RECITALS
A. Seller has developed the Stillwater Plains Mitigation Bank ("the Bank") located in Shasta County, California;
B. Seller has received approval from the U.S. Army Corps of Engineers, U.S. Fish & Wildlife Service (the “Service”) and California Department of Fish and Wildlife ("the Agencies") to offer off-site compensatory mitigation for projects or permits that require minimization of adverse effects upon the Federally Listed as Threatened Valley Elderberry Longhorn Beetle (Desmocerus californicus dimorphus) (VELB) and its habitat in accordance with the Mitigation Bank Enabling Instrument for the Stillwater Plains Mitigation Bank, Inc. dated September 26, 2000, on file with Seller, which by this reference is made a part of this Agreement; and C. Buyer is seeking to implement the project described on Exhibit "A" attached hereto ("Project"), which will unavoidably and adversely impact the VELB, and seeks to compensate for the loss of VELB habitat by purchasing compensatory units from Bank; and D. Buyer is authorized by the Agencies to purchase 26 VELB credits from a serviceapproved conservation bank.
E. Buyer desires to purchase from Seller and Seller desires to sell to Buyer 26 VELB credits from the project site in accordance with the requirements, standards and guidelines set forth in the USFWS Consultation Letter dated April 23, 2021 for USFWS File No. 08ESMF00-2021-F1145-1.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
Section 1. Purchase. Seller hereby sells to Buyer and Buyer hereby purchases from Seller 26 VELB credits on the terms and conditions set forth in this agreement.
AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 2
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project Section 2. Purchase Price and Terms. The purchase price (the "Purchase Price") shall be the sum of $117,000.00, payable by cashier’s check or wire transfer according to instructions provided by Seller to Buyer. Upon receipt of the Purchase Price, the Seller shall complete the payment receipt form attached hereto as Exhibit "B" and shall submit a copy of the completed payment receipt to Buyer and the respective Agencies.
Section 3. Bill of Sale. Upon receipt of the full purchase price, the Seller will deliver to Buyer an executed Bill of Sale in the manner and form as attached and marked Exhibit "C".
Section 4. Buyer's Interest in Property. The sale and transfer herein is not a sale or transfer to Buyer of a security, license, lease, easement, or possessory or non-possessory interest in real property, nor the granting of any interest of the foregoing.
Section 5. Disclaimer of Representations and Warranties. Buyer acknowledges that Buyer is solely responsible for ensuring that the mitigation credits purchased pursuant to this Agreement satisfy any and all of Buyer's mitigation requirements as required by the U.S. Army Corps of Engineers, U.S. Fish & Wildlife Service, California Department of Fish and Game and any other private, public, or governmental entity, agency, or person. Buyer acknowledges that no express or implied representations or warranties are given by Seller with respect to any matter relating to the credits purchased under this Agreement. The entire risk as to whether the credits satisfy Buyer's requirements for mitigation are assumed by Buyer.
Section 6. Non-Transferable/Non-Assignable. The compensatory credits sold and transferred to Buyer 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.
Section 7. Non-Refundable. Because Buyer is solely responsible for ensuring that the credits purchased pursuant to this Agreement satisfy Buyer's mitigation requirements before purchase, Buyer acknowledges and agrees that the Purchase Price paid for the purchase of credits pursuant to this Agreement is non-refundable.
Section 8. Miscellaneous.
8.1. Attorneys' Fees. In any action, proceeding, or arbitration arising out of or relating to this Contract, the prevailing party shall be entitled to reasonable attorneys' fees, costs, and expenses.
8.2. Entire Agreement. The Contract and the attached exhibits constitute the entire agreement between the parties relating to the reservation and/or sale of the compensatory credits and/or services required under this Agreement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Contract are of no force and effect unless it is in writing and signed by Buyer and Seller.
8.3. Binding Effect. This Contract shall be binding on and inure to the benefit of the parties to this Contract and their heirs, personal representatives, successors, and assigns, except as otherwise provided in this Contract.
AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 3
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project
8.4. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that the transmission of a signed copy of this Agreement via facsimile shall constitute execution and delivery hereof, and the parties agree to deliver original ink signed counterparts as soon as reasonably possible thereafter.
8.5. Governing Law. This Contract and the legal relations between the parties shall be governed by and construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement to be effective on the day and year stated above.
SELLER:
STILLWATER PLAINS MITIGATION
BANK, INC., a California Corporation
By: ___________________________________
Glenn Hawes, President
BUYER:
CITY OF MARYSVILLE
By:_________________________________
__________________, Contract Officer
APPROVED:
SERVICE:
This Agreement fulfills the mitigation requirements specified under the Formal Consultation Letter dated April 23, 2021 08ESMF00-2021-F-1145-1, regarding the above project.
U.S. FISH AND WILDLIFE SERVICE
By: _________________________________________
Title: ________________________________________
Dated: _______________________________________
AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 4
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project EXHIBIT "A"
DESCRIPTION OF PROJECT
TO BE
MITIGATED
Buyer shall be solely responsible for the accuracy of the description of project to be mitigated.
City of Marysville’s Wastewater Treatment Plant Pond Closure Project USFWS 08ESMF00-2021-F-1145-1
See Page 5 for Project Description.
AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 5
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project Description of the Action
The proposed project straddles the Yuba River at the confluence of the Feather and Yuba Rivers. The proposed project is the decommissioning of the northern and southern percolation and evaporation ponds (referred to as wastewater ponds) at the City’s wastewater treatment plant. Decommissioning involves removal and disposal of onsite structures, grading of the site to remove interior pond berms, and removing sludge in the ponds that could be hazardous to human health. The proposed project will be graded to slope to one centralized area and will be hydroseeded for erosion protection. The levees surrounding the wastewater ponds will remain but may be resurfaced on the wastewater pond side to achieve the desired slope.
A Cease and Desist Order (Order Number R5-2009-0014) (Order) was issued to the City’s wastewater treatment plant due to noncompliance with state requirements that prohibit inundation of certain facilities during flood events. To comply with the Order, the City built infrastructure to send the City’s municipal wastewater to an adjacent district for treatment, which the Service issued a biological opinion for on February 27, 2017 (Service File Number 08ESMF00-2017-F-0918-1). The City now needs to decommission the percolation and evaporation ponds (referred to as wastewater ponds) at the wastewater treatment plant.
Seventy-three elderberry shrubs (Sambucus sp.) were found within the action area. Thirty-one elderberry shrubs occur either within the wastewater ponds where sludge will be removed or along the berms that will have to be removed to comply with the Order. Many of the elderberry shrubs within the wastewater ponds are comprised of a single stem, equal to or slightly greater than 1 inch in diameter at the base. Sixteen elderberry shrubs are located in the northern wastewater pond area scattered along the existing berms but are denser along the perimeter berm and levee adjacent to the Feather and Yuba Rivers. Fifteen elderberry shrubs are located in the southern wastewater pond area primarily congregated in the southern most wastewater pond. Twenty-four of the 31 elderberry shrubs that will be removed are located within or on the fringe of the contaminated municipal sludge and will not be transplanted to prevent contamination of the transplant site. Furthermore, these elderberry shrubs will be disposed at a Class II landfill along with all other vegetation growing in the sludge as it would be nearly impossible to remove all of the municipal sludge from the plants. The seven other elderberry shrubs that will be removed will be transplanted to a Service-approved conservation bank. The remaining 42 elderberry shrubs will be avoided.
The proposed project will occur during the dry season for five months. Construction is planned to start in early June 2021 and will finish in October 2021. The proposed project will use excavators, rubber-tired dozers, graders, tractors, and loaders. There are two staging areas, one for each wastewater pond. Each staging area is located north of the corresponding pond. Access to the wastewater ponds will be by existing dirt, gravel, and paved roads. The sludge will be disposed at a Class II landfill.
AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 6
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project EXHIBIT "B"
STILLWATER PLAINS MITIGATION BANK, INC.
VERNAL POOL: PAYMENT RECEIPT
BUYER INFORMATION
Name: City of Marysville
Address: 526 C Street
Marysville, CA 95901
Telephone: (916) 782-9100
Contact: Emily C. Mecke, Ecorp Consulting, Inc.
PROJECT INFORMATION
Project Description: City of Marysville’s Wastewater Treatment Plant Pond Closure Project File Number: 08ESMF00-2021-F-1145-1
Species/Habitat Affected: Valley Elderberry Longhorn Beetle Habitat Credits to be Purchased: 26 Valley Elderberry Longhorn Beetle credits Payment Amount: $117,000.00
Project Location: City of Marysville
County/Address: Yolo County, California
PAYMENT INFORMATION
Payor: City of Marysville
Payee: Stillwater Plains Mitigation Bank, Inc. $117,000.00 Method of payment: Check or Wire
Received By: ________________________________ Date:__________________ (Signature)
Name: Glenn Hawes
Title: President
FOR ILLUSTRATIVE PURPOSES ONLY, NOT EFFECTIVE UNTIL SIGNED AGREEMENT FOR SALE OF MITIGATION CREDITS PAGE 7
BY STILLWATER PLAINS MITIGATION BANK, INC.
Stillwater Plains Mitigation Bank, Inc. / City of Marysville’s Wastewater Treatment Plant Pond Closure Project EXHIBIT "C"
BILL OF SALE
In consideration of $117,000.00, receipt of which is hereby acknowledged, Stillwater Plains Mitigation Bank, Inc. does hereby bargain, well and transfer to the City of Marysville 26 credits of Valley Elderberry Longhorn Beetle (VELB) habitat in the Stillwater Plains Mitigation Bank in Shasta County, California, developed, and approved by the U.S. Army Corps of Engineers, the U.S.
Fish & Wildlife Service and the California Department of Fish and Game.
DATED: ______________
STILLWATER PLAINS MITIGATION
BANK, INC., a California corporation
By: _________________________________
Glenn Hawes, President
FOR ILLUSTRATIVE PURPOSES ONLY, NOT EFFECTIVE UNTIL SIGNED