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HomeMy WebLinkAbout7/3/2013 - AGREEMENTS BOGERT WASH PRESERVE COMPLIANCE MONITORING AND FUNDING AGREEMENT This BOGERT WASH PRESERVE COMPLIANCE MONITORING,t4ND FUNDING AGREEMENT ("Agreement') is made and entered into this '4 day of 2013 ("Effective Date") by and between City of Palm Springs, a California charter city and municipal corporation ("City') and Center for Natural Lands Management, a California nonprofit corporation ("CNLM"), each a "Party' or together, the "Parties", as set forth below. RECITALS A. City is the sole owner of approximately 4.29 acres ("Property"), being a portion of designated APN 512-190-027, in the County of Riverside ("County"), State of California ("State"), as further described in Exhibit A(Legal Descrigtion) and as depicted on Exhibit B (Map), both attached hereto. The City will grant to CNLM a conservation easement ("Conservation Easement') over Property to offset impacts from the Bogert Bridge Trail Rehabilitation Project ("Project'). The Project is within the Casey's June beetle (Dinacoma caseyf) 2011 Critical Habitat ("Critical Habitat'), and will impact approximately 0.93 acre of Critical Habitat. Critical Habitat was proposed in 2009 with the final designation made in 2011. It is the intention of the Parties that the Property become the Bogert Wash Preserve ("Preserve'). B. CNLM is a tax-exempt non-profit organization qualified under Section 501(c)(3) of the Internal Revenue Code and qualified to do business in the State of California. CNLM has as its primary purpose the management of land in an environmentally and biologically beneficial manner consistent with state and federal environmental laws. CNLM is authorized to hold conservation easements pursuant to California Civil Code Section 815.3. CNLM has been authorized by the California Department of Fish and Wildlife ("CDFW"), based upon the information provided pursuant to Government Code Section 65965, to hold both conservation easements pursuant to Civil Code Section 815.3 and Government Code section 65967 and management endowments for properties subject to conservation easements. CNLM is qualified for and committed to the protection of wetlands, wildlife, and wildlife habitat. C. The United States Fish and Wildlife Service ("FWS"), an agency within the United States Department of the Interior, has jurisdiction over the conservation, protection, restoration, and management of fish, wildlife, native plants, and the habitat necessary for biologically sustainable populations of these species within the United States pursuant to the Endangered Species Act, 16 U.S.C. §§1531, et seq. ("ESA"), the Fish and Wildlife Coordination Act, 16 U.S.C. §§661-666c, the Fish and Wildlife Act of 1956, 16 U.S.C. §§742(f), et seq., and other provisions of federal law. Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 1 of 11 D. The U.S. Army Corps of Engineers ("ACOE") is the federal agency charged with regulatory authority over discharges of dredged and fill material in waters of the United States pursuant to §404 of the Clean Water Act, 33 U.S.C. §1251 et seq. E. INTENTIONALLY LEFT BLANK F. Preserve will provide mitigation for certain impacts of the Project pursuant to requirements of: 1. ACOE Clean Water Act Section 404 Permit SPL-2010-00138-SCH (May 18, 2011, as revised on December 7, 2011, and as re-verified on June 4, 2013) ("404 Permit"), attached as Exhibit C-1 (404 Permit). 2. FWS Conference Opinion No. FWS-ERIV-1 1 B0021-11 FC0344 (May 18, 2011) and adopted as the Biological Opinion (October 20, 2011) ("CO"), both attached as Exhibit C-2 (Conference Opinion). Collectively, Recitals F.1 and F.2 and the referenced attachments are referred to as the "Agency Approvals." G. The Preserve provides habitat for Casey's June beetle (Dinacoma caseyi)—an endangered species under the ESA—and is located within the 2011 Critical Habitat. The Preserve is intended to be perpetually conserved, managed, and preserved for the protection of its "Conservation Values," as that term is defined in the Conservation Easement, to wit: "Conservation Values of the Preserve include (currently occupied) habitat within 2011 designated critical habitat for the federal endangered Casey's June beetle (Dinacoma caseyi) and possible habitat for other special- status species including the burrowing owl (Athene cunicularia), the Palm Springs round-tailed ground squirrel (Xerospermophilus tereticaudus chlorus), Le Conte's thrasher(Toxostoma lecontei), and crissal thrasher (Toxostoma crissali). Conservation values also include provision of suitable foraging habitat for raptors and service as a corridor to connect populations of these and additional mammal and bird species, in particular. Further, Conservation Values also include the habitat and services provided by the intermittent water feature of this desert wash habitat." H. City intends to grant to CNLM concurrently with this Agreement, and CNLM intends to accept, the Conservation Easement (with third-party beneficiary enforcement rights to FWS and ACOE) over the Property, to be the Preserve as referenced above. The Conservation Easement requires that CNLM monitor for Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 2 of 11 compliance and enforce and defend only and does not obligate CNLM to conduct any biological monitoring, management, or maintenance activities on the Preserve. I. CNLM complies with accounting practices established by the Financial Accounting Standard Board ("FASB") which through Accounting Standards Codification Section 958-210-45-15 "Reporting Endowment Funds - Net Assets of an Endowment" establishes principles for the classification of assets based on donor-imposed restrictions. In conformance with this Standard, the principal in the CE Endowment Fund created and managed under the terms of this Agreement will be classified as "permanently restricted" and income derived from it will be classified as "temporarily restricted." J. City and CNLM desire to enter into this Agreement to (1) establish CNLM's obligation to conduct compliance monitoring, enforcement, and defense of the Conservation Easement, and (2) establish an endowment to financially support CNLM's compliance monitoring, enforcement, and defense of the Conservation Easement in perpetuity. K. This Agreement does not govern or address any matters relating to conserved habitat management, operations, stewardship expenses, or conservation policies; mitigation compliance; the application for or use of grants; the creation, recording, or implementation of conservation easements; biological monitoring; property management; and stewardship, or any similar undertaking. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Conditions Precedent. CNLM's obligations under this Agreement shall become absolute with respect to Preserve only upon transfers or documentation of the following to CNLM: a. Recordation of the Conservation Easement in a form acceptable to CNLM over the Preserve; and b. Non-refundable Payment as described and defined below in Section 3. 2. Site Visit and Baseline Documentation. Prior to the Effective Date, representatives of the Parties have conducted walk-through inspections of Preserve. CNLM shall document site conditions pursuant to a Land Trust Alliance-compliant baseline report, with attachments, documenting Preserve conditions ("Conservation Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 3 of 11 Easement Baseline Documentation") contemporaneous with the recording of the Conservation Easement, and shall provide the City and escrow copies of such documents. 3. Payment. In consideration of CNLM's agreement to assume the obligation to monitor Preserve for compliance with the Conservation Easement in perpetuity, City shall deliver to CNLM One Hundred Thirty-two Thousand One Hundred and Thirteen Dollars ($132,113.00), of which Twenty-one Thousand Fifty Three Dollars ($21,053.00) shall be the temporarily restricted "Initial and Capital Fund" and the remainder, One Hundred and Eleven Thousand Sixty Dollars ($111,060.00) shall be the permanently restricted "Endowment Fund" or"Endowment" for the CNLM's administration and Conservation Easement compliance monitoring, enforcement, and defense. The Initial and Capital Fund and Endowment collectively are referred to as the "Payment." City shall have no obligation to provide additional funding to CNLM, except to the extent otherwise expressly provided in this Agreement. The Payment amount was established Property Analysis Record© "PAR" attached as Exhibit D-1 PAR and utilizing CNLM's ope y y ("PAR") PAR Letter) and as modified pursuant to the Adjustment Letter attached as Exhibit D-2 (Final Funding Amounts Letter) 4. Management of Funds by CNLM. CNLM has a fiduciary duty to ensure that the Endowment held by it is properly managed. CNLM shall deposit investment income from the Endowment into the Endowment Fund to be held as temporarily restricted assets unless reclassified as permanently restricted assets. The following principles of fiduciary duty shall apply: a. Accounting. CNLM shall maintain an accurate accounting of funds in the Endowment Fund including at minimum an annual balance sheet and income statement and such accounting will be separate from all other accounting of funds held by or managed by CNLM. Funds in the Endowment Fund may be pooled with other funds held by or managed by CNLM for investment purposes. b. Duty of loyalty. CNLM shall have a duty of loyalty and shall not use funds in the Endowment Fund for its own benefit (except for those administrative fees due CNLM as provided by this Agreement). C. Prudent investor. CNLM shall act as a prudent investor of the Endowment Fund subject to the Uniform Prudent Management of Institutional Funds Act (California Probate Code Sections 18500 et seq.), and shall account for Endowment Funds under General Accepted Accounting Principles ("GAAP"). d. Auditing. CNLM shall have an annual audit of the Endowment Fund using GAAP performed by a qualified, independent accounting organization. CNLM shall submit the auditor's written report to City, FWS, and/or ACOE upon request. The results of such audits will include, at a minimum, a record of the beginning Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 4 of 11 and ending fund balance, all deposits and withdrawals, and a record of the income and expense of the Endowment Fund. 5. Access to Preserve. CNLM shall have the right of access to the Preserve as provided by the Conservation Easement. 6. Preserve Management. a. Management Responsibilities. City, its successors and assigns will own and manage the Preserve in accordance with the Conservation Easement and the CO. CNLM shall have no responsibilities for biological monitoring, management, or maintenance of the Preserve. Specifically, the City is responsible for the CO requirement of weeding the Preserve (alien plants removed with native plants retained) for ecological enhancement twice annually for five years from the date of recordation of the Conservation Easement. City is also responsible for posting signs, within three months of recordation of the Conservation Easement, to identify the Preserve as protected. CNLM's obligation to provide compliance monitoring of the Preserve shall be in accordance with the Conservation Easement. b. Cooperation. City and CNLM, and their respective successors and assigns, will use reasonable efforts to coordinate their work and the discharge of their respective responsibilities under the Conservation Easement and this Agreement, and as otherwise required by law, such that the activities of one party (or its contractors, consultants, agents, representatives and assigns) do not impede the obligations or activities of the other. C. City's Responsibilities and Obligations. City, its successors and assigns, contractors, and subcontractors shall, with respect to its obligations under this Agreement: (1) Cooperate with CNLM in good faith in its discharge of CNLM's Conservation Easement compliance monitoring obligations under this Agreement; (2) Reasonably ensure that CNLM has unimpeded and adequate pedestrian and vehicular access in perpetuity to the Preserve through public rights of way or property owned or controlled by City or its successors and assigns, to the extent provided for and pursuant to the terms and conditions contained in the Conservation Easement; (3) Promptly provide CNLM with any and all revisions to Agency Approvals or any other habitat management/stewardship plan required by FWS, ACOE, or other government agency; and Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 5 of 11 (4) Survey and mark legal boundaries of Preserve in a manner acceptable to CNLM; (5) Provide notice to CNLM a minimum of ninety (90) days prior to the initiation of any restoration and/or enhancement activities by the City at the Preserve. (6) If required by Agency Approvals, FWS, and/or ACOE, and in consultation with CNLM, maintain in perpetuity and in good and effective condition all fencing and conservation signage on Preserve. 7. CNLM Rights and Obligations Relating to the Preserve. With respect to Preserve, CNLM shall: a. Conduct general inspections and otherwise monitor Preserve for compliance with the Conservation Easement and as set forth in this Agreement. b. Submit annual reports to City, FWS, and ACOE regarding the Conservation Easement compliance status of Preserve. C. Cooperate in good faith and as necessary with City, and its successors and assigns, and FWS to ensure that the Preserve's Conservation Values are maintained. 8. Interpretation and Headings. a. The language in all parts of this Agreement shall in all cases be simply construed according to its fair meaning, and not strictly for or against any party. Headings of the paragraphs of this Agreement are for the purposes of convenience only and the words contained in such headings shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement. b. In the event of any direct contradiction or conflict among the terms of this Agreement and the Conservation Easement, the terms of the Conservation Easement shall control. In all other cases, the terms of this Agreement and the terms of the Conservation Easement shall be interpreted to be supplementary to each other. 9. Modification. This Agreement is not subject to modification except in a writing signed by both parties, and any attempted modification not in compliance with this requirement shall be void. 10. Notices. All notices, demands, or requests from one organization to another may be personally delivered, sent by facsimile, sent by recognized overnight delivery service, or sent by mail, certified or registered, postage prepaid, to the persons Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 6 of 11 set forth below or shall be deemed given five days after deposit in the United States mail, certified and postage prepaid, return receipt requested, and addressed as follows or at such other address as any organization may from time to time specify to the other organizations in writing, and shall be effective at the time of personal delivery, facsimile transmission, or mailing. CNLM Center for Natural Lands Management Attention: President/ Executive Director 27258 Via Industria, Suite B Temecula, CA 92590 Telephone: 760-731-7790 City City of Palm Springs Attn: Director of Public Works 3200 East Tahquitz Canyon Way Palm Springs, CA 92262 Telephone: 760-323-8299 With a copy to: U.S. Fish and Wildlife Service Palm Springs Fish and Wildlife Office 777 East Tahquitz Canyon Way, Suite 208 Palm Springs, CA 92262 Telephone: 760-322-2070 U.S. Department of the Army Los Angeles District Corps of Engineers Attention: Regulatory Division 915 Wilshire Blvd. Los Angeles, CA 90017 Telephone: 213-452-3409 Any of the above-listed agencies or organizations may change the address to which such notices, payments, or other communications may be sent by giving the other organizations written notice of such change. Facsimile transmitted signed documents are acceptable, as if such documents bore original signatures. Each Party agrees to provide to the other Party within seventy-two (72) hours after transmission, such documents bearing the original signatures. 11. Successors and Assigns. This Agreement and each of its covenants and conditions shall be binding on, and shall inure to, the benefit of the Parties and their respective successors and assigns. CNLM shall not assign this Agreement to another party without the prior written consent of City, which consent shall not be unreasonably withheld. CNLM agrees that it shall be reasonable for City to withhold consent if such assignment is to an entity that is not a recognized non-profit conservation organization, or to an entity that has not assumed all of the rights and obligations of CNLM, as Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 7 of 11 Grantee, under the Conservation Easement. A Party's rights and obligations under this Agreement terminate on the transfer of the Party's interest in Preserve, except for liability for acts or omissions occurring prior to transfer, which shall survive transfer. Notwithstanding the foregoing, City shall have the right to transfer its interest in Preserve in accordance with the Conservation Easement, and in connection therewith City shall have the right to assign its rights and obligations under this Agreement to City's successor without obtaining the consent of Grantee so long as such transfer is made in accordance with the Conservation Easement. 12. Exhibits. All exhibits referred to in this Agreement are attached to this Agreement and are incorporated herein by this reference. 13. Counterparts. This Agreement may be executed by the Parties in counterparts, both of which shall be deemed to be an original executed document. 14. Indemnification. Each Party (the "first Party") does hereby agree to the maximum extent permitted by law, at its sole cost and expense, to protect, defend (by counsel approved by the first Party), indemnify, and hold harmless the other Party (the "second Party") and any of the second Party's parent corporations, subsidiaries, and affiliates, and their respective officers, managers, directors, representatives, employees, contractors, agents, transferees, successors and assigns, from any and all liabilities, damages (both actual and consequential), losses, costs, expenses, claims, actions or proceedings, including, without limitation, reasonable attorney's fees and expert fees, that are caused by or arise or are connected with: (a) the negligence, errors, omissions, recklessness or intentional misconduct of the first Party or the employees or agents of the first Party in the performance of this Agreement or(b) a default in the first Party's performance or failure to perform its obligations under this Agreement. Each Party shall comply, at its sole cost and expense, with all laws and regulations applicable to the Party's obligation under this Agreement. 15. No Partnerships. This Agreement shall not make, or be deemed to make, either Party to this Agreement an agent for or the partner of the other Party. 16. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California. Any litigation or arbitration regarding this Agreement will be brought in Riverside County Superior Court or conducted in County of Riverside. 17. Severability. If any provision of this Agreement, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this Agreement, or the application of such provision to person or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 8 of 11 18. Termination. This Agreement may be terminated only upon (a) default by CNLM of any provisions under this Agreement or the Conservation Easement, where such default is not cured within the time periods set forth in this Agreement or the Conservation Easement, (b) extinguishment of the Conservation Easements, or (c) the Parties enter into a replacement agreement, i.e., a compliance monitoring and funding agreement ("CMFA") whereby City funds a Preserve stewardship endowment and CNLM assumes perpetual stewardship responsibilities for the Preserve. In the event of termination by reason of CNLM default, any and all monies remaining in the Initial Capital Fund and the Endowment Fund established pursuant to Section 3 of this Agreement shall be transferred by CNLM to the replacement Conservation Easement compliance monitor of Preserve designated and approved by FWS, ACOE, and the City, except for committed expenses (which shall be paid by CNLM) and costs of the transfer. In the event of termination by reason of Conservation Easement extinguishment, any and all monies remaining in the Initial Capital Fund and the Endowment Fund established pursuant to Section 3 of this Agreement shall be transferred by CNLM as determined by a court of competent jurisdiction, except for committed expenses (which shall be paid by CNLM) and costs of the transfer. In the event of termination by reason of the Parties entering into a replacement agreement, any and all monies remaining in the Initial Capital Fund (temporarily restricted funds) and the permanently restricted Endowment Fund established pursuant to Section 3 of this Agreement shall be transferred within CNLM, with FWS, and ACOE concurrence, into a stewardship endowment to be held by CNLM in perpetuity. 19 •Insurance. CNLM shall maintain, at its sole cost and expense, the insurance coverages covering activities performed under, and obligations undertaken in, this Agreement as described and defined in Exhibit E (Insurance), attached hereto and incorporated herein by reference.' EXECUTED this 0-day of-�4 2013. SIGNATURES ON FOLLOWING PAGE Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 9 of 11 CENTER FOR NATURAL LANDS MANAGEMENT By:/ ' :`v " Da�i R runner, '--PFresidenU Execute Direc r Date: Z zc7 r 3 APPROVED BY COUNSEL -bfl . Mo p- eA David A. Monroe General Counsel C�" OF PALM SPRINGS Name: 1l WNAGER 7City AS TOFORMATitle: Attorney Date: tleln APPROVED BY CITY COUNCIL. ATTEST: ity Clerk Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 10 of 11 TABLE OF EXHIBITS Exhibits A: Legal Description Exhibits B: Map Exhibit C-1: ACOE 404 permit Exhibit C-2: FWS Conference Opinion Exhibit D-1: PAR and PAR Letter, dated December 16, 2011 Exhibit D-2: Final Funding Amounts Letter, dated May 2, 2013 Exhibit E: Insurance Bogert Wash Preserve COMPLIANCE MONITORING AND FUNDING AGREEMENT Page 11 of 11