HomeMy WebLinkAbout1999-26540
9/ 10/99agrP W D(T0B;) RT)
INDIAN RIVER COUNTY ef 4,66
PUBLIC WORKS DEPARTMENT
COASTAL ENGINEERING DIVISION
PROFESSIONAL SERVICES AGREEMENT -
INDIAN RIVER COUNTY HABITAT CONSERVATION
PLAN FOR SEA TURTLES
THIS AGREEMENT, entered into this 12thday of October_ -_, 1999 by and
between INDIAN RIVER COUNTY, a political subdivision of the State of Florida, hereinafter
referred to as the COUNTY, and ECOLOGICAL ASSOCIATES, P.O. BOX 405, JENSEN
BEACH, FLORIDA, 34958-0405, hereinafter referred to as the CONSULTANT,
WITNESSETH
The COUNTY and the CONSULTANT, in consideration of their mutual covenants,
herein agree with respect to the performance of professional services in environmental
planning, and other related services by the CONSULTANT and the payment forthose services
by the COUNTY as set forth below.
The CONSULTANT shall provide professional environmental planning and related
services to the COUNTY in all phases as described in the Scope of Services; serve as the
COUNTY'S professional representative and shall give professional advice to the COUNTY
during the performance of the services to be rendered.
SECTION I - PROJECT LIMITS
The project limits shall include, but is not limited to, the entire County and associated
municipalities. Rasir servirec required of the CONSULTANT II T,ANT for the project ::'ill be
described in other appropriate sections of this Agreement.
SECTION II - COUNTY OBLIGATIONS
The COUNTY agrees to provide the following material, data, and/or services to the
CONSULTANT as required in connection with the work to be performed under this
Agreement:
1. The COUNTY shall provide the CONSULTANT with copies of the Beach
Preservation Plan, relevant sections of the County's Comprehensive Plan,
coastal land use classifications, existing data and reports relating to the
economic value of beaches and coastal properties within the Project Limits and
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other relevant documents.
2. The COUNTYv shall provide the CONSULTANT with existing drawings, maps,
aerial photography, electronic GIS files, and other graphic materials in the
possession of the COUNTY pertinent to the project.
3. The COUNTY shall be responsible for acquiring all easements, right-of-ways,
and other rights of land as may be necessary to complete the project.
4. The COUNTY shall make provisions for the CONSULTANT to enter upon
public or private property as required to perform work identified in the Scope
of Services.
5. The COUNTY shall provide the CONSULTANT with professional coastal
engineering information, reports, and/or data necessary to complete the project.
This may include, but is not limited to, beach survey data, information on
coastal features and processes, characterization of erosion patterns, and
documentation of existing coastal armoring structures. Additionally, the
COUNTY will assist the CONSULTANT in addressing all engineering issues
related to the project.
6. The COUNTY shall provide the CONSULTANT with all available information
in their possession on cultural resources within the project area, including the
location of archaeological and/or historic sites.
7. The COUNTY shall assist the CONSULTANT with identifying sources of
funding and shall be responsible for securing funding for programs developed
as a result of this project.
SECTION 111 - SCOPE OF SERVICES
The CONSULTANT agrees to perform professional environmental planning, and other
related services in connection with the project as required and set forth in the following:
The CONSULTANT shall provide the following services:
1. Conduct a complete review of all existing documentation related to this project.
2. Develop a Habitat Conservation Plan for sea turtle protection within the Project
Limits.
3. Provide all NEPA-required information and apply for a Section 10 Permit from
the United States Fish and Wildlife Service.
Background:
In an effort to resolve the legal challenges and litigation regarding Caribbean
Conservation Corporation (Sea Turtle Survival League) vs. Indian River County, Florida,
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a Patricia King, Brenda and Dirk Parvus, R. Seth McCoy, Richard T. Simpson, Jr., Anne E.
Strand, and Peter]. Trimarche, a fourth -party and a fifth party, Cheryl Gerstner, with pending
legal challenges unrelated to the above, an Interim Agreement and Memorandum of
Agreement has been developed in conjunction with the State of Florida Department of
Environmental Protection. These agreements, in more specific language, commit the County
to developing a Habitat Conservation Plan (HCP) for the entire County shoreline as part of an
application for a Section 10 permit under the Endangered Species Act from the United States
Fish and Wildlife Service (USFWS). The overall objective of the HCP is to improve the
protection of sea turtles and their nesting habitat so as to offset the potential "incidental take"
caused by the construction of coastal armoring and other structures built to protect beachfront
property from erosion.
The CONSULTANT shall he familiar with the enclosed InteriM Agreeirnent an-'
Memorandum of Agreement. (Append ix "A"). All conditions and criteria outlined in these
agreements shall be strictly followed and apply to the proposed work.
1. Documentation Review
This phase will be used to investigate and analyze any previous work related
to the project. Historical reports and/or existing data which provide useful information in
identifying baseline biological conditions will be reviewed and summarized for incorporation
into required project documents. Scientific documentation maintained by the County, City
of Vero Beach, USFWS, USACOE, FDEP (Bureau of Protected Species Management), FGFCC,
and other recognized scientific organizations and academic institutions shall be considered.
2. Project Description/Impacts
During this time, the {-ICP boundaries shall be identified (entire Atlantic
shoreline) and the type of ownership shall be described. The species to be covered under
the permit shall be identified, and the activity or activities to be regulated will be described.
The potential for "take", present and future, assnciated with the proposed activity or activities
shah be assessed by the CONSULTANT.
In addition, results of any relevant project information provided by the COUNTY
or otherwise obtained by the CONSULTANT shall be reviewed, summarized, and presented,
as applicable, including, but not limited to, maps, drawings, surveys, reports, biological data,
protected species/sensitive natural areas in the Project Limits, and other relevant
investigations. An environmental assessment of the effects/impacts of "take" from present
coastal activities shall be completed and impacts identified as direct, indirect or cumulative.
The activities assessed shall not be limited to the above legal challenges. Impacts which result
from coastal armoring, development, erosion and effects from the presence of Sebastian Inlet
shall be included. The CONSULTANT shall use the above analysis to develop minimization
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measures and estimate the conservation value of proposed mitigation measures developed
during the project.
3. Analysis of Minimization and Mitigation Alternatives
This section shall involve the development of minimization measures to reduce
the potential for "take" associated with the proposed activity or activities, as well as the
development of mitigation measures to offset "take" which may still occur despite
minimization efforts. Additionally, the CONSULTANT shall lay out reasonable alternatives
to the proposed activity/activities and compare the potential impacts of each with the
proposed activity/activities.
1) Minimization Examples may include but are not limited to: Using other
beach management techniques, such as beach nourishment, in place of,
or in conjunction with, armoring to ensure suitable nesting habitat will
remain; limiting the timing of construction to avoid the main portion of
the nesting season and surveying for and marking and avoiding all nests
laid outside the main portion of the nesting season; limiting the types of
armoring structures that might be used to minimize encroachment onto
the nesting beach; siting armoring structures as far landward as possible;
and removing armoring if it is determined to not be effective or to be
causing a significant adverse impact to the beach and dune system.
2) Mitigation Examples may include but are not limited to: Purchasing fee -
title or development rights to undeveloped beachfront properties;
restoringthe coastal dunes and vegetation; renourishing eroded beaches
with beach -quality sand outside of sea turtle nesting season; conducting
an appropriate nest monitoring program of all the County shoreline (22.4
miles); enforcing a beach lighting ordinance; and educating local
residents and beach visitors about sea turtles and threats to theirsurvival.
4. Develop the Habitat Conservation Pian.
A report will be generated that will outline recommendations) to the proposed
minimization and mitigation activities to federally listed species and their habitat. (This shall
not be limited to only sea turtle species, but shall also include a brief overview of any other
protected species which may be affected. A considerable amount of time, meetings and
coordination is expected to take place through the negotiations and Section 10 application
procedure. The CONSULTANT shall be expected to assist the COUNTY throughout the entire
process. All guidelines outlined by the USFWS shall be strictly followed in preparation of the
HCP and Section 10 Permit application. The following information shall be provided in the
HCP in a format acceptable to the United State Fish and Wildlife Service.
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Introduction
1. Background
2. Proposed Action(Activity or Activities)
3. Purpose and Need for Action
4. FWS Consultation History
5. Minimization and Mitigation Plan Objectives
6. Sea Turtle - Biological Overview
Affected Environment - 22.4 Miles of Atlantic Shoreline
1) Existing Land Use
2) Description of Sea Turtle Species Potentially Affected
3) Sea Turtle Population Status and Habitat Utilization
Existing Governing Policies
1) Regulations Pertaining to the Proposed Action
2) The Federal Endangered Species Act of 1973
3) Applicable State Codes Regarding Protected Species
Minimization
1) Evaluation of Measures to Minimize Impacts
2) Description of, and justification for, Unavoidable Impacts
Alternative Actions Considered
1) The Proposed Action
2) No Action Alternative
3) Consideration of Alternate Action
Mitigation Plan
1) Specific Mitigation Plan Goals
2) Proposed Mitigation Measures
a. Description of Proposed Measures
b. Protected Species Affected by Each Measure
C. Conservation Value of Each Measure on Target Species
3) Indian River County Sea Turtle Habitat Conservation Plan
a. Statement of Site Element Management Goals -Statement will be
based on information gathered in the above described tasks and
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wiI I be clearly defined in order to evaluate future achievement of
the mitigation plan goals
b. Determination of Management Needs
C. Consideration of Habitat Management Technique(s) - using the
framework identified in the preliminary planning phase,
determine the best management technique(s) to achieve the
project goals considering applicable project constraints
d. Objectives of Habitat Management Techniques
e. Design of Habitat Conservation Plan Monitoring Program - the
monitoring program will be directed towards evaluation of the
effects of minimization and mitigation efforts on the protected
target species and the quality of their habitat
f. Description of Measures, Programs, and Regulations Required to
Implement HCP
Funding
1) Identification of costs for initial and on-going management activities,
including monitoring
2) Identification of funding sources and commitments to secure funding
for the life of the project
Monitoring Effects & Effectiveness
1) Description of proposed monitoring techniques, time frames, and
reporting
2) Number and minimum qualifications of those who will conduct
monitoring activities
3) Deveiopnient of criteria/parameters to evaluate the effectiveness of the
HCP
5. Finalize HCP Documents and Incidental Take Permit Application
Provision of Draft HCP and Draft NEPA Document
The CONSULTANT shall provide county staff with twenty copies of the draft
HCP and draft NEPA document. In consultation with the United States Fish and
Wildlife Service, the CONSULTANT will prepare the HCP and NEPA
information as either a single document or as separate documents. COUNTY
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staff will distribute the copies to staff of the FWS, Florida Department of
Environmental Protection and Caribbean Conservation Corporation. After a
review period, the COUNTY will receive comments that will be forwarded to
the CONSULTANT, who will address the comments and make revisions to the
HCP, as necessary.
Participation in Public Meetings
Once a final draft of the HCP is developed, the CONSULTANT shall be
available to attend public meetings before the Indian River County Board of
County Commissioners, and shall assist county staff in its presentations to the
referenced entities concerning aspects of the HCP. The CONSULTANT shall
make final revisions to the HCP as necessary to address concerns raised by the
referenced entities, as applicable and appropriate.
Completion of Incidental Take Permit Application
The CONSULTANT shall prepare a complete application to the FWS for an
incidental take Section 10 permit relating to the HCP.
6. Study Requirements and Provisions of Work
Project Schedule
The schedule for completion of the project will be six months from the date of
issuance of the Notice to Proceed to the submittal of the Sec`ion 10 permit
application. The CONSULTANT may request an extension of time based on
unforeseen circumstances. This request must be made in writing to the
COUNTY and must describe the reasons necessitating an extension. No
extension is granied wiihout expressed written approval by the County's Project
Manager. The CONSULTANT must at all times exercise due diligence in
adhering to the conditions set forth in the Interim Agreement & Memorandum
of Agreement (Appendix A). Prior to the COUNTY's issuance of the Notice to
Proceed, the CONSULTANT shall provide a schedule of calendar deadlines for
submittals accompanied by an anticipated payout curve.
Meetings and Presentations
The CONSULTANT shall attend a Notice to Proceed meeting with county staff,
where relevant project information shall be provided by the County, along with
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procedures for administering the contract. The CONSULTANT shall meet with
the County's Project Manager as often as is deemed necessary by the COUNTY.
The CONSULTANT shall also provide regular briefings to county staff, and
other entities as deemed necessary by the COUNTY.
Quality Control
The CONSULTANT shall be responsible for ensuring that all work products
conform to FWS standards and criteria. This shall be accomplished through an
internal quality control process performed by the CONSULTANT.
Correspondence
Copies of all written correspondence between the CONSULTANT and any party
pertaining specifically to this project shall be provided to the COUNTY in a
timely manner in accordance with the INTERIM AGREEMENT.
Progress Reporting
The CONSULTANT shall communicate with the COUNTY's Project Manager,
at a minimum, on a weekly basis and describe the work performed on each
task. Additionally, the CONSULTANT will be required to attend meetings and
prepare written progress reports if it is determined by the COUNTY's Project
Manager to be necessary to track the Project development.
Submittals
The CONSULTANT shall provide copies of the required documents as listed
below. These are the anticipated printing requirements for the Project. This
tabulation shall be used for estimating purposes, and the Project Manager will
determine the actual number of copies required prior to each submittal.
Draft Habitat Conservation Plan and Draft NEPA Document ..........................
.................................................................................20+ 1 unbound copy
Final Habitat Conservation Plan and NEPA Document...................................
.................................................................................20+ 1 unbound copy
All documents, graphics, charts, and supporting material generated during the
course of this project will be furnished to the COUNTY in electronic format at
the conclusion of the project.
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7. The CONSULTANT will endeavor not to duplicate any previous work done
related to the project. After issuance of the notice -to -proceed, the
CONSULTANT shall meet with the COUNTY to clarify and define the
COUNTY'S requirements for the project.
8. The CONSULTANT will attend all COUNTY public hearings, workshops and
any other related meetings pertinent to the project.
9. In order to accomplish the work set forth under this Agreement in the time
frames and conditions described, the CONSULTANT will observe the following
requirements:
1) The CONSULTANT will complete the work on the project within the
time allowed by maintaining an adequate staff at all times qualified to
perform such work.
2) The CONSULTANT will comply with all Federal, State and Local laws
applicable to this project. The CONSULTANT will complete the project
in such a manner as to be in conformance with all applicable Federal,
State & Local laws.
3) The CONSULTANT will prepare and complete all necessary documents,
reports, maps, drawings, survey data, and other related information
pertinent to the project.
4) The CONSULTANT will provide a complete copy of the report(s) to any
City, County, State or Federal regulatory agency from which approval is
required.
5) The CONSULTANT will cooperate fully with the COUNTY through all
phases of work.
6) The CONSULTANT shall advise the COUNTY of the status of this
project and hold calculations, reports, and related work open to the
inspection of the County Coastal Engineer or his authorized
representative at any time, upon reasonable request.
10. The CONSULTANT will furnish additional copies of the reports, specifications
and contract documents as required by the COUNTY for Federal, State, and
Local agencies from whom approval of the project may be obtained, and other
interested parties, but may charge only for the actual cost of providing such
copies. All original documents, and items furnished to the CONSULTANT by
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the COUNTY pursuant to this Agreement, are and shall remain the property of
the COUNTY, and shall be delivered to the COUNTY upon completion of the
work.
11. The CONSULTANT acknowledges that preparation of applicable documents
and forms for the COUNTY'S submittal through governmental regulatory
agencies are included within the scope of basic compensation in this
Agreement. Any additional work required after the date of this Agreement shall
bean additional service and the COUNTY shall compensate the CONSULTANT
in accordance with SECTION VI -Additional Services, of this Agreement. The
Board of County Commissioners must approve all additional work prior to
commencement.
12. Compensation to the CONSULTANT for basic services shall be in accordance
with this Agreement, mutually agreed upon by the CONSULTANT and
COUNTY.
SECTION IV - TIME FOR COMPLETION
The time for completion shall be in accordance with Exhibit "B". This scheduling will
be strictly followed in order to meet the necessary deadlines to complete the project.
SECTION V - COMPENSATION
The COUNTY agrees to pay and the CONSULTANT agrees to accept for services
rendered pursuant to this Agreement fees in accordance with the following:
1. Professional Services Fee
a. The CONSULTANT agrees to perform all the services as delineated in this
agreement. Actual billing will be based on hourly rates, per Schedule of Rates and Fees as
contained herein, in accordance with the fee schedule Exhibit "C" attached. Tile total fee for
the project will not surpass the fee designated by this Agreement, $161,140 . Reimbursable
expenses such as mileage, blueprints, postage, photocopies, etc. shall be included in the fee
designated by this Agreement and will not be paid separately by the COUNTY.
SECTION VI -ADDITIONAL SERVICES
In the event changes are requested from the COUNTY to the contract after execution,
such work shall be subject to approval by the Board of County Commissioners.
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Any and all work performed other than that specifically listed in Section III, "Scope of
Services", shall be considered Additional Services. Compensation for Additional Service work
shall be at a lump sum price to be negotiated between CONSULTANT and the COUNTY, or
at the COUNTY'S option, Additional Services work may be performed on an hourly basis,
plus reimbursable expenses, per the Schedule of Rate and Fees as contained herein.
1. Direct Payment for Additional Services
The COUNTY agrees to pay on a direct basis for services or goods provided by
others working in conjunction with the CONSULTANT, as needed and as evidenced by a
mutually executed Addendum to this Contract.
SECTION VII - PARTIAL PAYMENTS
The COUNTY shall make partial payments to the CONSULTANT on a time and
materials basis, in accordance with this agreement.
The CONSULTANT shall submit duly certified invoices in triplicate to the County
Coastal Engineer each month that services are rendered. Each invoice sliali describe the
percentage of work completed on each task to date.
The COUNTY will withhold a 10% retainage until all work is complete and accepted
by the County Coastal Engineer.
SECTION VIII - EXTRA WORK
In the event extra work is necessary from the CONSULTANT due to a change in scope
of the project, such work shall be subject to approval by the Board of County Commissioners.
SECTION IX - RIGHT OF DECISIONS
All services shall be performed by the CONSULTANT to the satisfaction of the County
Coastal Engineer who shall decide all questions, difficulties, and disputes of whatever nature
which may arise under or by reason of this Agreement and according to the prosecution and
fulfillment of the service hereunder, and the character, quality, amount and value thereof, and
the County Coastal Engineer's decision upon all claims questions and disputes shall be final,
conclusive and binding upon the parties hereto unless such determination is clearly arbitrary
or unreasonable.
Adjustments of compensation and contract time because of any major changes in the
work that might become necessary or be deemed desirable as the work progresses shall be
reviewed by the County Coastal Engineer. In the event that the CONSULTANT does not
concur in the judgment of the County Coastal Engineer as to any decisions made by him,
he/she shall present his/her written objections to the County Public Works Director; and the
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County Coastal Engineer and the CONSULTANT shall abide by the decision of the Public
Works Director of Indian River County, unless the decision is clearly arbitrary or
unreasonable.
SECTION X - OWNERSHIP AND REUSE OF DOCUMENTS
1. Ownership
All reports, plans, specifications, field books, survey information, maps, contract
documents, and other data developed by the CONSULTANT for the purpose of
this Agreement shall become the property of the COUNTY and shall be made
available by the CONSUI-1/,J1417 at any time upon request of the COUNTY.
When all work cont<.mr.':,: " under this Agreement is complete, all of the
above data shall be delivered fo the County Coastal Engineer.
2. Reuse of Documents
All documents, including but not limited to drawings, reports, and
specifications, prepared by the CONSULTANT pursuant to this Agreement are
related exclusively to the services described herein. Compensation will not be
required for reuse of the documents for any purpose by the COUNTY. The
CONSULTANT shall not be held liable for any reuse of the Documents and
shall not be held liable for any modifications made to the documents by others.
SECTION XI - NOTICES
Any notices, reports or other written communications from the CONSULTANT to the
COUNTY shall be considered delivered when posted by certified mail or delivered in person
to the County Coastal Engineer at 1840 25'h Street, Vero Beach, FL.. Any notices, reports or
other communications from the COUNTY totheCONSULTANT shall be considered delivered
when posted by certified mail to the CONSULTANT at Ecological Associates, Inc., P.O. pox
405, Jensen Beach, F1.34958-0405, or the last address left on file with the COUNTY or deliv-
ered in person to said CONSULTANT or his authorized representative. In person deliveries
shall be evidence by signed receipts.
SECTION Xli - TERMINATION
The obligation to provide further services under this Agreement may be terminated by
either party upon seven (y) days written notice in the event of substantial failure by the other
party to perform in accordance with the terms hereof through no fault of the terminating party.
In the event of any terminations, the CONSULTANT will be paid for all services rendered to
the date of termination, all expenses subject to reimbursement hereunder, and other
reasonable expenses incurred by the CONSULTANT as a result of such termination.
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- SECTION XIII - AUDIT RIGHTS
The COUNTY reserves the right to audit the records of the CONSULTANT related to
this Agreement at any time during the prosecution of the work included herein and for a
period of one (1) year after final payment is made.
SECTION XIV - SUBLETTING
The CONSULTANT shall not sublet, assign, or transfer any work under this Agreement
without the written consent of the COUNTY. When applicable and upon receipt of such
consent in writing, the CONSULTANT shall cause the names of the firms responsible for the
major portions of each separate specialty of the work to be inserted on the reports or other
data.
SECTION XV - WARRANTY
The CONSULTANT warrants that he/she has not employed or retained any company
or person other than bona fide employee working solely for the CONSULTANT to solicit or
secure this contract and that he/she has not paid or agreed to pay any company or person
other than a bona fide employee working solely for the CONSULTANT any fee, commission,
percentage fee, gifts or any other considerations, contingent upon or resulting from the award
or making of this contract. For breach violation of this warranty, the COUNTY shall have the
right to annul this contract without liability.
SECTION XVI - DURATION OF AGREEMENT
This Agreement shall remain in full force and effect for a period of three years after the
date of execution thereof or until completion of all project phases as specified by the County
Coastal Engineer, whichever occurs first, or unless otherwise terminated by mutual consent
of the parties hereto or pursuant to Section XII of this contract.
SECTION XVII - INSURANCE AND INDEMNIFICATION
During the performance of the work covered by this Agreement, the CONSULTANT
shall provide the COUNTY with evidence that the CONSULTANT has obtained and maintains
the insurance listed in the Agreement.
1. CONSULTANT shall procure and maintain for the duration of the contract,
insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the performance of the work hereunder
by the CONSULTANT, his/her agents, representatives, employees or sub-
contractors. The cost of such insurance shall be included in the
CONSULTANT'S fee.
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2. Minimum Scope of Insurance
1) Worker's Compensation as required by the State of Florida. Employers
Liability of $100,000 each accident, $500,000 disease policy limit, and
$100,000 disease each employee.
2) General Liability $1,000,000 combined single limit per accident for
bodily injury and property damage. COUNTY shall be an additional
insured.
3) Auto Liability $1,000,000 combined single limit per accident for bodily
injury and property damage for owned and non -owned vehicles.
COUNTY shall be an additional insured.
4) Professional Liability Insurance providing coverage for negligent acts,
errors, or omissions committed by CONSULTANT with a limit of
$500,000 per claim/annual aggregate. This insurance shall extend
coverage to loss of interest, earning, profit, use and business
interruption, cost of replacement power, and other special, indirect and
consequential damages.
3. Any deductibles or self insured retentions greater than $5,000 must be
approved by the Risk Manager for Indian River County with the ultimate
responsibility for same going to the CONSULTANT.
4. CONSULTANT'S insurance coverage shall be primary.
5. All above insurance policies shall be placed with insurers with a Best's rating
of no less that A VII. The insurer chosen shall also be licensed to do business
in Florida.
6. The insurance policies procured shall be occurrence forms, not claims made
policies, with the exception of professional liahility.
7. The insurance companies chosen shall provide certificates of insurance prior to
signing of contracts to the Indian River County Risk Management Department.
8. The insurance companies selected shall send written verification to the Indian
River County Risk Management Department that they will provide 30 days
written notice to the Indian River County Department of Risk Management
of its intent to cancel or terminate said policies of insurance.
9. CONSULTANT shall include all sub -contractors as insured under its policies or
shall furnish separate certificates and endorsements for each sub -contractor. All
coverages for sub -contractors shall be subject to all of the requirements stated
herein.
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10. The CONSULTANT or firm shall hold harmless the COUNTY and
representatives thereof from all suits, actions, or claims of any kind brought on
account of any injuries or damages sustained by any person or property arising
out of any negligent act or omission by the CONSULTANT or firm or its
employees, or from any claims or amounts arising or uncovered under any law,
bylaw, ordinance, regulation, or decree. The CONSULTANT or firm shall be
responsible for all reasonable defense costs incurred as a result of any suits,
actions, or claims of any kind brought in connection with this project to the
extent arising out of any negligent error omission or act of CONSULTANT.
SECTION XVIII - ENTIRETY OF AGREEMENT
This writing embodies the entire Agreement and understanding between the parties
hereto, and there are no other Agreements and understandings, oral or written, with reference
to the subject matter hereof that are not merged herein and superseded hereby.
No alteration, change, or modification of the terms of this Agreement shall be valid
unless made in writing and signed by both parties hereto.
This Agreement, regardless of where executed, shall be governed by and construed
according to the laws of the State of Florida.
IN WITNESS WHEREOF the parties hereto have executed these presents this
12th day of October --, 1999.
ECOLOGICAL ASSOCIATES, INC
P.O. Box 405
JENSEN BEACH, FL. 34958-0405
Robert G. Ernest, President
WITNESS: V
WITNESS:
(Corporate seal is acceptable in
place of witnesses)
FAPublic Works\Rebecca\CCAST,ALV co.agr
INDIAN RIVER COUNTY, FLORIDA
BOARD OF COUNTY COMMISSION
t3Y:
enneth R. Macht, Chairman
Board approved October 12, 1999
Attest.. — r
Jeffrey K. Ba�ian
'Cle�4c, of Cqurt
ApproUI DJ!a I
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APPENDIX "A"
Interim Agreement & Memorandum of Agreement
APPENDIX A
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INTERIM AGREEMENT
WHEREAS the State of Florida Department of Environmental Protection
(Department, DEP) has exclusive jurisdiction to issue coastal construction control line
("CCCL") permits under chapter 161 of the Florida Statutes to authorize permanent
structures seaward of the CCCL in Indian River County, Florida;
WHEREAS Dirk and Brenda Parvus, Anne E. Strand, Peter J. Trimarche, E.
Bruce and Patricia N. King, Richard T. and Louise S. Simpson, and R. Seth McCoy
("the Summerplace Petitioners") applied for permit number IR -512 ATF for an after -the -
fact Department permit to authorize an existing steel sheet pile bulkhead ("Bulkhead")
seaward of the CCCL in Indian River County across six (6) adiacent and continuous
parcels owned by the Summerplace Petitioners, which application was denied by the
Department in part because the Bulkhead was determined by the Department to cause
a "take" of endangered marine turtles;
WHEREAS the Summerplace Petitioners have jointly filed a petition with the
Department challenging the Department's denial of permit application number IR -512
ATF, which case is currently pending at the Division of Administrative Hearings
("DOAH") as DOAH Case Number 98-3501;
WHEREAS Lam, (;, Gerstner and Cheryl I. Gerstner ("the Gerstner Petitioners")
applied for an after -the -fact modification to Department permit number IR -511 to
authorize an existing steel sheet pile bulkhead ("Bulkhead") placed further seaward of
the CCCL in Indian River County on a parcel owned by the Gerstner Petitioners than
was authorized in IR -511, which application for modification was denied by the
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Department in part because the Bulkhead was determined by the Department to cause
a "take" of endangered marine turtles;
WHEREAS the Gerstner Petitioners have jointly filed a petition with the
Department challenging the Department's denial of an application for an after -the -fact
modification to Department permit number IR -511, which case is currently pending at
the Division of Administrative Hearings ("DOAH") as DOM Case Number 97-4262, and
the Gerstner Petitioners have jointly filed a request for review with the Florida Land and
Water Adjudicatory Commission (FLAWAC) challenging that same Department denial,
which case is currently pending at FLAWAC as FLAWAC Case Number DEP RFR 97-
008;
WHEREAS Indian River County, Florida ("County") has jurisdiction to issue
permits for temporary emergency armoring structures and other certain allowable
emergency protection measures under section 161.085(3) of the Florida Statutes and
Rule 62B-33.0051(5), F.A.C., to authorize temporary armoring structures and other
emergency protection measures seaward of the CCCL in Indian River County;
WHEREAS the County issued a permit for a temporary emergency armoring
structure to temporarily authorize the Summerplace Petitioners' Bulkhead for sixty (60)
days, and the County issued a separate permit for a tempora-
- _ ,,,,,�1a�y Emergency armoring
structure to temporarily authorize the Gerstner Petitioners' Bulkhead for sixty (60) days;
WHEREAS the Caribbean Conservation Corporation and its related entity Sea
Turtle Survival League (hereafter referred to collectively as "CCC"), which is dedicated
to the protection of endangered marine turtles, believes that the County has improperly
issued permits for temporary emergency armoring structures under section 161.085(3)
40
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of the Florida Statutes, such as the emergency permit issued to the Summerplace
Petitioners and that the County's issuance of such permits has caused and will continue
to cause a "take" of endangered marine turtles;
WHEREAS the CCC has filed suit against the County in that certain case styled
Sea Turtle Survival League Inc v Indian River County, which is currently pending
before the Circuit Court of the Nineteenth Judicial Circuit for Indian River County, Case
Number 98 -171 -CA -05 (the "CCC Lawsuit"). In the CCC Lawsuit, CCC seeks, among
other things, the entry of a permanent injunction ordering the County to change its
temporary coastal emergency protection permit program to take additional steps to
protect against any possible "take" of marine turtles in Indian River County.
WHEREAS the CCC wants the County to develop a marine turtle habitat
conservation plan ("HCP"), and apply for and obtain a section 10 permit from the United
States Fish and Wildlife Service ("USFWS") under 16 United States Code 1539 that
incorporates the County's proposed HCP;
WHEREAS the benefits of suspending the uncertainty of pending litigation,
having the County pursue an HCP and obtain a section 10 permit, and other good and
valuable consideration has been exchanged by the parties to this agreement, and
receipt of such consideration from the other oartiac +o t.hi3 agre_nient _, .
_ � y��anis hereby
acknowledged;
NOW THEREFORE the parties signing this agreement agree as follows:
1. The County, through the Board of County Commissioners of Indian River
County, Florida, will enter into the memorandum of agreement ("MOR") with the
Department attached hereto as Exhibit A.
40
E
2. The County will develop a marine turtle habitat conservation plan ("HCP") for the
Indian River County shoreline and submit such HCP to the United States Fish and
Wildlife Service ("USFWS") as part of an application for a section 10 permit under the
Endangered Species Act from USFWS. The goal of the HCP must be to improve the
overall protection of sea turtles and their nesting habitat in Indian River County so as to
offset the potential "take" of marine turtles or their nesting habitat caused by the
construction of coastal armoring and other structures built to protect beachfront
property from erosion and sand -loss in Indian River County.
3. The County will apply for the above-described section 10 permit from the
USFWS within a reasonable time after signing this agreement.
4. The County will respond to each request for information from the USFWS
relating to the County's application for the above-described section 10 permit within a
reasonable time after such request.
5. The County will provide to the Department periodic reports (which may address
studies or monitoring) as may be required by any contract with the Department for
beach renourishment or restoration projects, which roports will be provided in the
manner and time frame specified in such contract. The County will provide the
Department and CCC with a copy of all correspondence between the County and
USFWS, relating to the County's application for the above-described section 10 permit,
within ten (10) days after receiving or generating such correspondence.
6. If the County fails to respond within a reasonable time after a request for
additional information from the USFWS relating to the County's application for the
above-described section 10 permit or if the County otherwise fails to pursue obtaining
do
the above-described section 10 permit in diligent good faith, then the Department may
send a written letter to the County identifying such failure and request the County to
cure such failure within twenty (20) days of the date of such letter (hereafter the 'Trigger
Letter").
7. If the County fails to cure or explain each failure identified in the Trigger Letter to
the Department's satisfaction within twenty (20) days of the date of such letter, then the
Department may revoke this agreement in writing. If the Department revokes this
agreement, then this agreement will become unenforceable by any party to this
agreement, except that the Department may sue the County for an accounting and
return of any unused or misused monies contributed by the Department, and the
Department will pursue litigation against the Summerplace Petitioners and the Gerstner
Petitioners.
B. The County agrees to make its best efforts to complete its HCP, apply for a
section 10 permit, and respond to requests for additional information by USFWS as
soon as practicable. If the County fails to make such best efforts, take required actions
within a reasonable time in accordance with paragraphs 3 through 6 above, or
otherwise fails to pursue obtaining the section 10 permit in diligent good faith, then CCC
may send a written letter to the Department identifyina such faihire end requesting the
Department take action to cure such failure within twenty (20) days of the date of such
letter. If the Department fails to cure or explain each failure identified in the letter to
CCC's satisfaction within twenty (20) days of the date of such letter, then CCC may file
a 60 -day notice letter and otherwise proceed with litigation under 16 U.S.C. § 1540(g)
despite the prohibitions contained in paragraph 19 of this agreement.
40
9. If the USFWS denies the County's application for the above-described section 10
permit and all appeals have been exhausted, then this entire agreement will be void
and the Department will pursue litigation against the Summerplace Petitioners and the
Gerstner Petitioners.
10. The Department will contribute funding to the County that will only be used to
develop the HCP and to obtain the above-described section 10 permit from the
USFWS. The Department will contribute to the County up to 75% of the cost of the
HCP, not to exceed $100,000. Funds will be provided through an amendment to DEP
Contract No. 981R1 upon receipt of an acceptable scope of work and a firm cost
estimate from the subcontractor selected to develop the plan. Future monitoring costs
will be eligible for cost sharing by the Department's Bureau of Beaches and Coastal
Systems in association with State -funded beach restoration projects. Monitoring
outside of the HCP project areas will not be eligible for cost sharing by the Bureau.
If the Department fails to contribute the amount of funding to which the Departmenthas
agreed in this paragraph, then the County may declare this agreement void by sending
a written letter expressly so stating to all signatories of this agreement.
11. The Department will forego pursuing any enforcement action against the
Summerplace Petitioners and the Gerstner Petitioners while this agreement remains in
effect.
12. The Department and the Summerplace Petitioners will forego litigating DOM
Case Number 98-3501 while this agreement remains in effect. The Department and the
Gerstner Petitioners will forego litigating DOM Case Number 97-4262 and FLAWAC
Case Number DEP RFR 97-008 while this agreement remains in effect.
6
40
13. The Summerplace Petitioners acknowledge that the Department's agreement to
forego any enforcement action against the Summerplace Petitioners or forego litigating
DOM Case Number 98-3501 while this agreement remains in effect does not form the
basis for an estoppel or waiver against the Department. The Gerstner Petitioners
acknowledge that the Department's agreement to forego any enforcement action
against the Gerstner Petitioners or forego litigating DOM Case Number 97-4262 and
FLAWAC Case Number DEP RFR 97-008 while this agreement remains in effect does
not form the basis for an estoppel or waiver against the Department.
14. This agreement may not be offered into evidence in any enforcement action by
the Department against the Summerplace Petitioners, in any litigation relating to DOM
Case Number 98-3501, or in any other litigation arising out of or related to any matters
at issue in DOAH Case Number 98-3501, except that the Department may offer this
agreement into evidence if the the Summerplace Petitioners argue that the
Department's actions in foregoing the pursuit of an enforcement action or litigating
DOAH Case Number 98-3501 during the time while this agreement remained in effect
should act as a waiver of any rights of the Department or estop the Department from
taking any action. This agreement may not be offered into evidence in any enforcement
action b the Department against the Gerstner Petitioners, in any litigation relating
Y P g any .�y��.�a�� �ciaw�y w
DOM Case Number 97-4262 or FLAWAC Case Number DEP RFR 97-008, or in any
other litigation arising out of or related to any matters at issue in DOM Case Number
97-4262 or FLAWAC Case Number DEP RFR 97-008, except that the Department may
offer this agreement into evidence if the Gerstner Petitioners argue that the
Department's actions in foregoing the pursuit of an enforcement action or litigating
40
DOM Case Number 97-4262 or FLAWAC Case Number DEP RFR 97-008 during the
time while this agreement remained in effect should act as a waiver of any rights of the
Department or estop the Department from taking any action.
15. The Summerplace Petitioners acknowledge that even if the above-described
section 10 permit is issued to the County by the USFWS, the Summerplace Petitioners
must still provide a vulnerability study to the Department which provides the Department
with reasonable assurance that the Summerplace Petitioners are eligible to receive
Department permit IR -512 ATF. If the Summerplace Petitioners fail to provide the
Department with the above-described vulnerability study by the time the above-
described section 10 permit is issued or if that vulnerability study shows that the
Summerplace Petitioners are ineligible to receive Department permit IR -512 ATF, then
the Department will resume litigating DOM Case Number 98-3501 and may take
enforcement action against the Summerplace Petitioners.
16. If the above-described section 10 permit is issued to the County and the
Summerplace Petitioners have submitted the above-described vulnerability study to the
Department, then the Department will issue permit IR -512 ATF, as amended, to
Petitioner after the Summerplace Petitioners dismiss with prejudice DOAH Case
Number 98-3501. If the above-described section 10 permit is issued to the county, theen
the Department will issue permit IR -511 M1 ATF to the Gerstner Petitioners.
17. While this agreement remains in effect, the Summerplace Petitioners may
backfill behind their existing Bulkhead with beach -compatible sand, provided that such
backfilling of sand either does not destroy existing vegetation or that the Summerplace
Petitioners offset the impacts of such vegetation destruction by replacing the destroyed
El
•
Attes K. Barton, CI INDIAN RIVER COUNTY, FLORIDA
B A By 1Kbnneth
rd of County Commissioners
PA?f�tp�1�5C�EtoY By R. Macht, 6airman
EXECUTED on this day of Qin L999.
Larry C. erstner Cheryl I. Ge tner
APPROVED AS TO FORM
AN GA )FFICIENCY:
EXECUTED on this *I- day of1999. Charles P. Vitunac
County Attorney
CARIB AN CONS ATION CORPORATION
By
I-Oavid Godfy, as Executive Director of
Caribbean onservation Corporation
EXECUTED on this
day of
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
By
-1�iI David. Struhs
Secrettry
111
•
s
vegetation with an equivalent number and quality of salt -tolerant native vegetation that
is appropriate for the location, provided any such activity does not occur seaward of the
existing Bulkhead during the marine turtle nesting season (March 1 through October
31).
18. While this agreement remains in effect, the Summerplace Petitioners may place
a temporary wooden cap on their Bulkhead. The Summerplace Petitioners will forego
making any modifications to their Bulkhead that are not expressly allowed in this
agreement, except that the Summerplace Petitioners may remove their Bulkhead at any
time so long as they do not cause a "take" of marine turtles in the process and no
construction activity or heavy equipment usage occurs seaward of the existing
Bulkhead during the marine turtle nesting season (March 1 through October 31).
19. While this agreement remains pending, CCC will forgo taking any step to
commence any form of litigation against any of the other parties to this agreement
regarding matters that would be mitigated for by the proposed HCP, and will abate the
CCC lawsuit pending the completion of the HCP and issuance of the above-described
section 10 permit. Upon the completion of the HCP and issuance of the section 10
permit, CCC will dismiss the CCC lawsuit.
20. If the USFWS issues the -above-described section 10 permit to the County and
CCC challenges that section 10 permit, then the Department will not issue
permit numbers IR -511 M1 ATF and IR -512 ATF until that lawsuit or proceeding is
resolved. If CCC prevails in such lawsuit or proceeding, then the Department will not
issue permit numbers IR -511 M1 ATF and IR -512 ATF. If CCC does not prevail in
such lawsuit or proceeding, then the Department will issue permit numbers IR -511 M1
9
40
•
ATF and IR -512 ATF and CCC will not challenge the issuance of permit numbers IR -
511 M1 ATF and IR -512 ATF and will not encourage any other entity to challenge the
issuance of either such permit.
21. This agreement will have no effect on any cases or parties not specifically
mentioned herein. Nothing in this agreement shall be construed to make any other
person or entity not executing this agreement a third party beneficiary to this
agreement.
22. All parties agree that they will bear their own costs and attorney's fees and no
party will seek attorney's fees and costs from any other party to this agreement, except
to the extent allowed in a lawsuit as described in paragraph 8 above. Notwithstanding
the above, CCC does not waive its rights to seek attorney's fees and costs from the
United States of America or its agencies.
23. This agreement shall terminate under the terms of paragraphs 6, 7, 8, 9, and 10,
or once the USFWS has issued a section 10 ("incidental take") permit to the County,
except that after USFWS has issued such permit to the County, DEP shall still be
required to comply with paragraph 16.
24. This agreement will be effective as of the date first executed below.
25. The DFP Qhall raise no ob ectiur1 in the application process for a Section 10
permit to the request by the County to be granted mitigation credit for past purchases of
beach land in the county.
26. The HCP shall cover all the beach land in Indian River County, regardless of the
ownership.
EXECUTED on thisLa day of /� , 1999.
Q9
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0
FILED AND ACKNOWLEDGED on this date, under section 120.52 of the Florida Statutes,
with the designated Denartment Clerk, receipt of which is hereby acknowledged.
CLERK
/ , � / � NATE r
EXECUTED on this3O day of lv � , 1999.
Dirk and Brenda Parvus, Anne E. Strand,
Peter J. Trimarche, E. Bruce and Patricia
N. King, Richard T. and Louise S. Simpson,
and R. Seth McCoy (the Summe lace Petitioners)
By--�.� ,moo
Thomas G. Tomasello, as attorney and
authorized representative for the Summerplace Petitioners
12
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MEMORANDUM OF AGREEMENT
THIS NIEAIORANDUAI OF AGREEMENT (MOA) is entered into this _ day of
. 1999, by and between the Florida Department of Environmental Protection ("the
Department") and the Board of County Commissioners of Indian River County, Florida, ("the
Commission").
WITNESSETH:
WHEREAS, the Florida Legislature has provided guidance concerning the matter of
emergency coastal protection through Section 161.085(3), Florida Statutes, which statute
provides, in part, that local governments "may install or authorize installation of rigid coastal
armoring structures for the protection of private structures or public infrastructures, or take other
measures ..." under certain circumstances; and
WHEREAS, the Florida Legislature has also provided guidance to the Florida
Department of Environmental Protection concerning the matter of protection of nesting marine
turtles and their habitat through Sections 161.053(5)(c) and 370.12(1), Florida Statutes, which
statutes require, in part, that the Department shall condition permits to protect marine turtles and
that no harm or injury that could be classified as a "take" be allowed by the Department unless
authorized under the Federal Endangered Species Act; and
WHEREAS, certain questions have been raised concerning the manner in which Indian
River County, through its Board of County Commissioners, has exercised its authority to issue
emergency authorizations for emergency coastal protection; and
WHEREAS, the Commission has issued permits for the installation of certain temporary
emergency structures and those structures, upon review by the Department, were found not to he
ill compliance with state statutes and administrative rules; and
WHEREAS, litigation is pending concerning the Department's decisions in the matter of
these permits for emergency coastal protection within Indian River County, and the possibility of
additional litigation has been raised by other parties; and
WHEREAS, both the Department and the Commission wish to proceed in a manner
which is consistent with the requirements of all applicable Florida Statutes and which affords
timely and appropriate remedies to the citizens living along the Atlantic Coastline of Indian
River County.
40
IN
A
NO'"' THEREFORE, the parties hereto commit, through this Memorandum of
Agreement, to conduct themselves in accordance with the attachment hereto. Specifically, the
Commission agrees that the Board of County Commissioners of Indian River County, Florida,
and its agents and employees, will cooperate with the Department in accordance with the
attached protocols for issuance of emergency protection permits, and the additional requirements
for the protection of marine turtles and their habitat. The Florida Department of Environmental
Protection agrees that favorable recommendations as to is nuance of Departmental permits will be
given to those applicants that have conducted their activities in accordance with the
authorizations issued by Indian River County and that meet all applicable requirements of law.
The parties agree that this Memorandum of Agreement will remain in effect until a Habitat
Conservation Plan addressing the issues contained herein incorporates or supersedes this
Memorandum of Agreement.
ENTERED INTO this � day of 1999.
Attest: J. K. Barton, Clerk INDIAN RIVE UNTY, FLORIDA
y its Boar f County Commissi' s
By
---� Deputy Clerk . , By
eth R. Mac t, thairman
' ll' STATE OF FLORIDA DEPARTMENT OF
jQV.L ENVIRONMENTAL, PROTECTION
t By
,(,. fDa 'd B. Struhs
Secretary
FILED AND ACKNOWLEDGED on this date, under section 120.52 of the Florida Statutes,
with the designated Departwent Clerk, receipt of which is hereby acknowledged.
v
El�/K-7
ATE
2
40
INDIAN RIVER COUNTY MEMORANDUM OF AGREEMENT
ATTACHMENT
(1) The County will fully comply with Chapter 6213-33, F.A.C., and consult with the
Department when it is uncertain about the purpose or intent of any part of the rule
prior to taking action pursuant to section 161.085, F.S.
(2) The County agrees that if, during a consultation process undertaken pursuant to
paragraph (1) above, a proposed action is determined by the Department (in writing)
to be inconsistent with the rule or statute, then it will not take action on the matter
until the inconsistency is removed, another acceptable option is chosen, or the issue is
resolved by the Secretary and a representative of the County Commission.
(3) The Department agrees to provide immediate priority assistance to the County when
requested, to include technical support, consultation, and, if given adequate notice, a
site visit by qualified personnel authorized by the Department to act on its behalf.
Further, the Department agrees to expeditiousl,,- process any permit application for
armoring or other emergency measures in areas designated as being under an
emergency condition by the County.
(4) In accordance with section 161.085, F.S., rule 6213-33.0051, F.A.C., and rule 6213-
33.014, F.A.C., a shoreline emergency is any unusual incident resulting from a
hurricane, storm, or other violent coastal disturbance that resulted in erosion, beach or
coastal damage, or damage to upland structures that endangers the coastal system or
the health, safety, welfare, or resources of citizens of the state. Only such events
qualify as emergencies enabling the County to authorize temporary emergency
protection for eligible structures pursuant to section 161.085, F.S. Emergency
protection may be provided when such a coastal storm threatens upland structures,
damages them, or makes them susceptible to damage from a subsequent high
frequency storm.
(5) The County will notify the Department in writing by the most expeditious means
avail -able when it has declared an emergency under section 161.085, F.S. Notification
of an emergency shall include documentation from the County Commission
authorizing the declaration of emergency and the date and details of the storm event
that created the emergency. Notice of such declarations will be forwarded to the
Bureau of Beaches and Coastal Systems (BBCS), Mail Station # 300, with a copy to
the Bureau of Protected Species Management (BPSM) or other state governmental
unit hereafter designated in writing by the Department, Mail Station # 245, at 3900
Commonwealth Blvd., Tallahassee FL 32399.
(6) The County agrees that emergency protection will be limited to one or a combination
of the following options: placement of beach -compatible fill, placement of sand bags
and/or geotextile fabrics that can be removed easily, shoring up of foundations, and
construction of temporary wooden retaining walls, cantilever sheetpile walls or
A-1
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similar structures. The following temporary armoring structures will not be used
unless approved in advance by the Department in writing: concrete -capped steel sheet
piles with or without tie -backs or other reinforcement; concrete seawalls; rock
revetments; concrete debris or rubble; or any structure that cannot be easily removed.
Authorization of temporary armoring structures shall include an assessment of the
threat to or a damage assessment of the eligible structures.
(7) The County agrees that it will not employ a beach scraping option in any area
designated as critically eroding by the Department, unless separate prior written
authorization is granted by the Department.
(8) All temporary armoring structures should be located as far landward as practicable to
minimize excavation of the beach and frontal dune, impacts to existing native coastal
vegetation, marine turtles and adjacent properties, and encroachment onto the beach,
while providing protection to the eligible structure. In the event that the alignment
proposed for a temporary armoring structure or other measures would be more than
15 feet seaward of the eligible structure or any distance seaward of the crest of the
escarpment on the active beach, the County will coordinate with the Department
concerning alignment through the Bureau of Beaches and Coastal Systems, who will
coordinate with the Bureau of Protected Species Management or other state
governmental unit hereafter designated in writing by the Department.
(9) Authorization for emergency protection shall be limited to 30 days after the initial
erosion event that resulted in the declaration of the emergency. The declaration of the
emergency shall occur as soon as possible after the storm event or other circumstance
which caused the emergency. If the permittee demonstrates that the emergency
conditions still exist after the initial 30 day time period then the County may
authorize a 30 -day extension. The County agrees to forward copies of all emergency
permits issued and notify the Department pf any time extension granted.
(10) The County will limit the time of construction in its permit to 30 days, with 30 days
additional time available, pursuant to 62B -33.0051(5)(b), F.A.C. Once a local permit
has been issued the Department will monitor construction progress and expedite
review of any applicatioul ieceived. Failure to complete construction within sixty
(60) days shall render the emergency declaration and any local permits for temporary
measures issued under it invalid.
(11) The County will condition any permit issued for armoring or other emergency
protection to require that any temporary structure be removed within 60 days of
installation, so long as such removal would not be detrimental to marine turtle
nesting, unless a complete application for a permit seeking authorization to retain the
temporary structure or to provide alternative protection has been provided to the
Department pursuant to sections 161.053 and 161.085, Florida Statutes. Unless the
permittee complies with the conditions of the County permit, upon expiration of the
County permit after 30 days, or 60 days if extended, the structure or measure shall be
deemed to be without benefit of a permit and subject to enforcement and immediate
A-2
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removal at the expense of the permittee. Removal which would take place during
marine turtle nesting season shall be subject to the approval of the Bureau of
Protected Species Management or other state governmental unit hereafter designated
in writing by the Department.
SPECIAL REQUIREMENTS AND GUIDELINES FOR PROTECTION OF MARINE TURTLES
Marine turtle nesting season in Indian River County begins on March 1 of each
year and ends on October 31 of each year. Construction of temporary emergency
protection structures on the beach after March 1 could result in the take of marine turtles,
their nests or hatchlings pursuant to F.S. 370.12. The County therefore agrees not to
authorize construction of temporary emergency armoring structures, beach scraping, or
any other actions that could adversely affect marine turtles or their nesting habitat during
the marine turtle nesting season. The County further agrees to require that property
owners operating under an emergency permit issued pursuant to Section 161.085, F.S.,
and Rule 62B-33.0051(5), F.A.C., comply with these guidelines prior to and during
construction of temporary emergency protection.
(t) The placement of sand bags is not subject to consultation with the Bureau of
Protected Species Management or other state governmental unit hereafter designated
in writing by the Department, provided such placement is as landward as practicable
and not during the marine turtle nesting season. Placement of sand bags during
nesting season will be in accordance with these guidelines. Any sand bags placed
within marine turtle nesting habitat outside the marine turtle nesting season or in
accordance with these guidelines will be removed prior to the beginning of the
following nesting :season (March 1), unless authorized by Department permit.
(2) The County agrees to cocainate with the Department's Bureau of Protected Species
Management or other state governmental unit hereafter designated in writing by the
Department to determine if a particular project site contains viable marine turtle
nesting habitat prior to issuance of the emergency authorization.
(3) Property owners requesting construction of temporary armoring structures during the
marine turtle nesting season (March 1 through October 31) will be advised that
marine turtle nesting surveys as outlined below shall be initiated immediately upon
issuance of the emergency permit and will proceed through completion of the
construction activity.
a) A daily marine turtle nest survey of the nesting beach in the vicinity of the
project (including areas of beach access) will be conducted starting March
1 and continue through October 31.
i) Nests deposited within the construction site will be left in situ
unless other factors threaten the success of the nest.
ii) If any nests are determined to have been deposited within the
project area and are not relocated due to conditions unrelated to the
A-3
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project, such nests will be marked and the actual location of the
clutch determined.
iii) A circle with a radius of ten (10) feet, centered at the clutch, will
be marked by stake and survey tape or string. No construction
activities will enter this circle and no adjacent construction will be
allowed which might directly or indirectly disturb the area within
the staked circle.
iv) If the nest carrot be avoided by ten (10) feet due to the scope of
the project, all work near the nest will be postponed until the nest
has completed incubation and all hatchlings have emerged.
b) It is the responsibility of the permittee to ensure that the project area and
access sites are surveyed for marine turtle nesting activity. All nesting
surveys, nest relocations, screening or caging activities etc, will be
conducted only by persons who are duly authorized to conduct such
activities through a valid permit issued by the Department's Division of
Marine Resources or other state governmental unit hereafter designated in
writing by the Department, pursuant to Rule 6211-1, F.A.C.
C) Construction at night cannot be authorized. Nighttime storage of
equipment or materials on the nesting beach is also prohibited.
d) All excavations and temporary alteration of beach topography will be
filled or leveled to the natural beach profile prior to 9:00 p.m. each day.
(4) Temporary lighting of the construction area cannot be authorized at anytime during
the marine turtle nesting season (March 1 through October 31). No additional
permanent exterior lighting is authorized.
(5) Marine turtle nests may not be relocated for the construction of temporary emergency
protection structures, including the placement of beach fill, unless such relocation is
authorized in an Incidental Take Permit issued pursuant to the Federal Endangered
Species Act.
(6) Tracked equipment, or equipment with ground pressure greater than 10 PSI, will not
be allowed to access the site seaward of the proposed emergency protection stn;cture
or along the nesting beach during marine lurtle nesting seaso„ unless such access has
been reviewed and approved by the Bureau of Protected Species Management or
other state governmental unit hereafter designated in writing by the Department.
(7) In the event the temporary emergency structure fails, the County will require the
permittee to remove all debris and structural material from the nesting beach area and
deposit it offsite, landward of the coastal construction control line, within 20 days of
the structural failure so long as such removal activity does not cause a "take" of
marine turtles in the process and no removal activity or heavy equipment usage
occurs seaward of the temporary emergency structure during marine turtle nesting
season (March 1 through October 31).
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AillEnvironmental
Department of
Protection
Marjory Bemoan Douglas Building
lob Bush 3900 Commonwealth Boulevard
Governor Tallahassee. Florida 32399-3000
March 19, 1999
C:ommissioncr pian Adams
Indian River County Commission
1840 25th Street
Vero Beach, Florida 32960
David e. struts
Secretary
re: Indian River County habitat Conservation Plan (HCP) Interim Agreement and
Memorandum of Agreement (.MOA)
C-- —Y,. —,
Dcar Commissi r ams:
Pursuant to our telephone conversation today, if the Habitat Consmation Plan costs
exceed 5100,000, the Department will amend its contract with Indian Rive COun—ty to complete
the Habitat Conservation Plan study, pursuant to the Interim Agreement.
Thank you for your continuing interest and cooperation in this matter.
Sincerely,
Kirby B.IGreen, III
Deputy Secretary
KBG/mba
cc Ed Conklin, Director
Division of Marine Resources
Dr AJ Devereaux, Chief
Bureau of Beaches and Coastal Systems
" Protem Conserve and Manage FloNdo's EnNronment and Nowral Resources"
P-04 m t*q c*d ne►•f
i
Appendix "6"
Work Schedule and Deadlines
APPENDIX B
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APPENDIX "C"
Schedule of Rates and Fees
APPENDIX C
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At
11- ECOLOGICAL ASSOCIATES, INC.
SCHEDULE OF RATES AND FEES TO PREPARE
INDIAN RIVET` COUNTY HABITAT CONSERVATION PLAN
FOR SEA TURTLES
Ecological Associates, Inc. (EAI) will prepare the Indian River County Habitat Conservation
Plan (HCP) for sea turtles and related professional services as described in the Professional
Services Agreement between EAI and Indian River County Public Works Department, Coastal
Engineering Division. As indicated in its Letter of Interest (RFP No 9054), EAI's scientific staff
is eminently qualified to prepare the HCP. However, to ensure that work products are developed
within the rigid time frames specified by the Professional Services Agreement, EAI will augment
its current personnel resources by hiring a new senior scientist. EAI is seeking a Ph.D. to fill this
position. The new senior scientist will participate in the project.
The cost for performing these services will be on a time and materials basis, as provided in the
referenced Agreement. Total project costs shall not exceed $161,140.00 without expressed
written consent of Indian River County. The not -to -exceed cost is inclusive of all labor,
equipment, supplies, direct expenses, and sub -contractor's fees needed to satisfy the conditions
of the Agreement. A breakdown of project costs is provided below.
Project
Task
Description of Services
Cost
Initial
Planning
Meetings with County staff and the USFWS to discuss
administrative procedures, outline HCP issues and project goals,
gather background materials, and review the Section 10 permit
application process
$900.00
Review federal HCP planning guidelines, prepare HCP outline
and develop QC Plan
$2,310.00
Conduct field assessment of coastal development, shoreline
features, and natural resources.
$4,620.00
Travel, mileage and other direct expenses
$495.00
Sub -Total
$8,325.00
Background
Research
Assemble and review requisite background material
$14,840.00
Identify affected species and summarize related biological
information
$6,740.00
Describe natural resources and coastal processes
$3,480.00
Characterize beachfront development and land uses
$3,000.00
Assess existing impacts to protected species
$7,360.00
Summarize socio-economic information
$2,840.00
40
SCHEDULE OF RATES AND FEES
(Continued)
Project
Description of Services
Cost
Task
Background
Describe existing authorities and pertinent regulations
$900.00
Meetings with County staff and the USFWS to review issues
Research
$1,800
and positions _
(Continued)
Copying costs, travel, mileage and other direct expenses
$805.00
Sub -Total
541,765.00
Prepare
To Be Performed by EAI's sub -contractor, Morgan & Eklund,
$29,690.00
Technical
Inc. See attached cost breakdown.
Support &
Graphic
Materials
Sub -Total
$29,690.00
Alternative
Describe proposed action and need for action; identify and
$8,170.00
Selection
describe alternatives; assess and compare potential impacts
among alternatives
Meetings with County staff and USFWS to review alternatives
$750.00
Travel, mileage and other direct expenses
$145.00
Sub -Total
$9,065.00
Develop
Identify and evaluate minimization measures
$7,720.00
Protective
Identify and evaluate mitigation measures
$6,520.00
Measures
Meetings with the County, USFWS, and stakeholders to review
$1,500.00
and refine minimization and mitigation measures
Travel, mileage and other direct expenses
$165.00
Sub -Total
$15,905.00
Prepare
Develop program to monitor and assess effectiveness of HCP
$1,200.00
Draft
HCP
Develop supporting programs and identify needed inter -local
$4,800.00
agreements and implementing regulations
Prepare implementation schedules and budgets and identify
$4,200.00
funding sources
Assemble and produce 20 copies of draft report in accordance
$5,640.00
with QC plan
Meetings with County and USFWS to finalize content and
$450.00
review format
Copying costs, travel, mileage and other direct expenses
$995.00
Sub -Total
$17,285.00
Public
Meetings with stakeholders and public hearings before County
$4,380.00
Review and
Commission
Comment
C
SCHEDULE OF DATES AND FEES
(Continued)
PROJECT TOTAL 1$161,140.00
Description of Services
Cost
Project
Task
Public
Review public comments and incorporate into final document
$8,460.00
Review and
Assemble and produce 20 copies of final document
$3,360.00
Comment
Prepare Section 10 permit Application
$450.00
(Continued)
Meetings with County staff to review document
$525.00
Copying costs, travel, mileage and other direct expenses
$995.00
Sub -Total
$18,170.00
Project
Coordination, administration, and program oversight
$5,400.00
Management
Sub -Total
$5,400.00
Post-
Review comments from USFWS
$3,440.00
Application
Meetings with County staff and USFWS to review deficiencies
$900.00
Support
and discuss outstanding issues
Address deficiencies
$5,520.00
Revise documents
$3,600.00
Assemble and produce 20 copies of final documents
$1,080.00
Copying costs, travel, mileage and other direct expenses
$995.00
Sub -Total
$15,535.00
PROJECT TOTAL 1$161,140.00
40
•
ECOLOGICAL ASSOCIATES, INC.
RATE AND FEE SCHEDULE
1) Personnel (Hourly Rates):
Project Manager/Scientific Director $75.00
Associate $70.00
Senior Scientist $60.00
Field Biologist $50.00
Lab/—Field Technician $30.00
2) Travel:
Mileage for trips in excess of 40 miles,
round trip, from base $ 0.30/,nile
3) Direct Expenses: Cost Plus 10%
40
Ecological Associates, Inc.
Attn.: Mr. Bob Ernest
PO Box 405
Jensen Beach, FL 34958
RE: Indian River County Habitat Conservation plan
Dear Bob:
Morgan & Eklund, Inc. is pleased to provide you with the following proposal to furnish
professional survey and mapping services for the above mentioned project.
In accordance with the scope of work as I understand it, based on our meeting with Jeff
Tabar, I estimate our costs to produce an ARC/Info compatible GIS map similar to the sample
map set (Volusia County) will be as follows:
I. Scan and georeference 1999 countywide coastal aerials
Chief Surveyor
4 hours n, $85.00/hr.................................... $ 340.00
Project Surveyor
�G hours @ $55.00/hr.................................. $ 1,320.00
Computer Technician
80 hours @ $50.00/hr.................................. $ 4,000.00
Three Man Survey Crew
40 hours @ $85.00/hr.................................. $ 3,400.00
RTK/GPS
5 days @ $450.00/day.................................. 2,2 0.00
TOTAL SECTION I .................................$ 11,310.00
BOUNDARY • MORTGAGE • ROUTE • CONSTRUCTION • TOPOGRAPHIC • CONTROL • HYDROGRAPHIC SURVEYS
MORGAN & EKLUND, INC.
PROFESSIONAL SURVEY CONSULTANTS
JOHN R. MORGAN, II, P.L.S.
8745 U.S. HIGHWAY 1
1500 S.E. 3rd COURT. SUITE 203
DEERFIELD BEACH. FL 33441
RONALD B. EKLUND, P.L.S.
P.O. BOX 1420
VJABASSO. FL 32970
(954) 421.6882
DAVID W. COGGIN
GARY W. BA7EMORE. P.S.M.
(561) 388.5364
FAX (954) 421-0451
FAX (561) 388.3165
August 26, 1999
(Revised September 9, 1999)
Ecological Associates, Inc.
Attn.: Mr. Bob Ernest
PO Box 405
Jensen Beach, FL 34958
RE: Indian River County Habitat Conservation plan
Dear Bob:
Morgan & Eklund, Inc. is pleased to provide you with the following proposal to furnish
professional survey and mapping services for the above mentioned project.
In accordance with the scope of work as I understand it, based on our meeting with Jeff
Tabar, I estimate our costs to produce an ARC/Info compatible GIS map similar to the sample
map set (Volusia County) will be as follows:
I. Scan and georeference 1999 countywide coastal aerials
Chief Surveyor
4 hours n, $85.00/hr.................................... $ 340.00
Project Surveyor
�G hours @ $55.00/hr.................................. $ 1,320.00
Computer Technician
80 hours @ $50.00/hr.................................. $ 4,000.00
Three Man Survey Crew
40 hours @ $85.00/hr.................................. $ 3,400.00
RTK/GPS
5 days @ $450.00/day.................................. 2,2 0.00
TOTAL SECTION I .................................$ 11,310.00
BOUNDARY • MORTGAGE • ROUTE • CONSTRUCTION • TOPOGRAPHIC • CONTROL • HYDROGRAPHIC SURVEYS
•
August 26, 1999
(Revised September 9, 1999)
Mr. Bob Ernest
Page 2 of 3
H. Produce basemaps for Habitat Conservation Plan
Chief Surveyor
4 hours @ $85.00/hr.................................... $ 340.00
Project Surveyor
32 hours @ $55.00/hr.................................. $ 1,760.00
Computer Technician
80 hours @ $50.00/hr.................................. $ 4.000.00
TOTAL SECTION II ................................ $ 6,100.00
I11. Overlay turtle nesting data, hardbottom location, cultural resource
information, critically eroded beach areas and other relevant data onto
basemaps
Chief Surveyor
4 hours @ $85.00/hr.................................... $ 340.00
Project Surveyor
36 hours @ $55.00/hr.................................. $ 1,980.00
Computer Technician
64 hours @ $50.00/hr.................................. $ 3,200.00
TOTAL SECTION III ..............................$ 5,520.00
W. Plot individual profiles onto S'/: x 11 aerials
Chief Surveyor
4 hours @ $85.00/hr .........................
Project Surveyor
16 hours @ $55.00/hr .......................
Computer Technician
40 hours @ $50.00/hr ........................
TOTAL SECTION IV............
........ $ 340.00
$ 880.00
..... $ 2,000.00
.............. $ 3,220.00
do
r
t
August 26, 1999
(Revised September 9, 1999)
Mr. Bob Ernest
Page 3 of 3
V. Assist County Coastal Engineer with shoreline and voluinetric change
calculations a^d plotting of results
Chief Surveyor
4 hours @ $85.00/hr................................... $ 340.00
Computer Technician
40 hours @ $50.00/hr.................................. $ 2.000.00
TOTAL SECTION V ................................ $ 2,340.00
V1. Compile color habitat Conservation Plan maps
A. Draft Copies
20 sets @ $30.00/set .............................. $ 600.00
B. Final Copies
20 sets @ $30.00/set .............................. $ 600.00
TOTAL SECTION VI ............................... $ 1,200.00 i
TOTAL COST I-IV ................................... S 29,690.00
This cost includes providing these graphic products to Ecological Associates, Inc. and the
County in an ARC/Info / GIS compatible format.
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