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HomeMy WebLinkAbout2005-375 �. ,_, � � � , � }� � . _ ;...,� -.,_ H W � U a 5 H a w a � � � � za z � � o x A U x � � H o � � a � � � z c o w � � o z a � w WW o W � U C7d' W x H INDIAN RIVER COUNTY ENVIRONMENTAL LANDS ACQUISITOIN PROGRAM AGREEMENT FOR PROFESSIONAL SERVICES THIS AGREEMENT is made this day of , 2005 , by and between Indian River County, a political subdivision of the State of Florida (the "County") and The Conservation Fund as Trustee of The Conservation Fund Charitable Trust dated October 16 , 1998 , as amended (TCF) . Whereas, on November 2 , 2004, the electorate of the County authorized the County to acquire lands to preserve and protect water quality, open spaces, wildlife habitat, historic/cultural heritage sites, and agricultural uses, by issuing general obligation bonds in an amount not to exceed $ 50 million; and Whereas, by Resolution No . 2005 -086 ( the "Resolution") , the County has reestablished a Land Acquisition Advisory Committee (the "LAAC") and established the Environmental ands Program (the "Program") . The Program ' s purposes, priorities, and standards for the acquisition and preservation of environmental lands are incorporated in the Indian River Count Land Environmental Lands Program Guide (the "Guide") ; and Whereas, the properties approved for acquisition by the LAAC pursuant to the Progi am contain a number of ownerships, and acquisition of these properties will require an increase in acquisition activities pursuant to the Program; and Whereas, the successful acquisition of environmental lands presents unique real estate and negotiating situations which require specialized expertise, and TCF has such expertise in the acquisition of environmental lands in Florida for state, regional, water management i listrict and local government programs ; and Whereas, many of the acquisition projects in the Program are approved or will be su mitted for joint funding under the State Florida Forever Program, the Save Our Rivers Program, the Florida Communities Trust Program, or other sources at all levels, public and private . Successful joint acquisitions require particular knowledge of these other programs, and TCF has the specialized knowledge from long experience with these programs ; and Whereas , the County' s environmental lands contain historic/cultural resources, agricultural resources , and harbor populations of rare, endangered or threatened species and natural communities that are endemic to the County, and the County desires to develop management plans for these lands . Developing management plans for these lands will require expertise in various resource management techniques . TCF and its Subcontractors have the experience and skills needed to accomplish theseplans and related tasks ; and Whereas, the County issued a Request for Proposals (RFP) in May 2005 for Ianjd acquisition services in support of the Program. Pursuant to applicable Florida law and the RFP , the County' s duly constituted Environmental Lands Acquisition Consultant Selection Committee 1 ("Selection Committee") received proposals and ranked the firms that responded to the RFP based on evaluative criteria set forth in the RFP . TCF was the highest ranked respondent to the RFP and on August 2 , 2005 , the County approved the Selection Committee ' s recommendation to appoint TCF to provide the independent land acquisition services set forth in the RF ; and Whereas , it is in the County' s best interest to engage the services of TCF (and through it, its Subcontractors), so that the purposes of the Program can be realized, and TCF desires to accept the obligation to perform services in connection with the Program upon the terms an conditions set forth herein. Now, therefore, in consideration of the premises referenced herein, and for other good and valuable consideration, the County and TCF agree as follows : ARTICLE 1 TCF RESPONSIBILITIES 1 . 01 General. In accordance with the policies, priorities and work plan developed by the County pursuant to the Resolution and the Guide, TCF will work with and provide support to the County Environmental Planning Section, County Attorney' s Office, County Administrator' s Office, and to the LAAC in the acquisition of environmental lands pursuant to the Program. TCF will utilize its real estate, legal, public relations, government relations , negotiating and environmental preservation expertise, skills and experience to assist the County in the implementation, coordination, and promotion of the Program and its goals . 1 . 02 Manage Pre-Acquisition Due Diligence Activities . The County may lect to provide the following necessary pre-acquisition documents and services to TCF top rmit performance of its responsibilities under this Agreement, or it may elect to direct TCF to subcontract these documents and services : appraisal maps or surveys, title reports, a praisals , appraisal reviews , surveys, environmental site assessments, and other reports, title insurance and other similar matters . If the County elects to have TCF subcontract these documents and services, it will so indicate in writing to TCF, designating the documents or services to be acquired . The County will review all such completed documents and services for conformance with this Agreement, the Resolution, the Guide and other applicable requirements . All documents and services completed for TCF will be certified to the county in a form sufficient to provide legal privity between the subcontractor and the county. The County and TCS' agree to cooperate fully in the development of general procedures and standards for the documents and services described in this section. TCF will develop a short-list of state- approved environmental land acquisition appraisers and establish appraisal procedures and instructions for potential appraisers for each property. TCF will be compensated for pre- acquisition services in accordance with section 3 . 01 of this Agreement. 1 . 03 Negotiations . TCF will make contact with owners to determine their (Willingness to sell and participate in the County' s program . TCF will utilize appraisals prepared', in accordance with this Agreement, and other appropriate information to develop a negotiating strategy for each parcel of land to be acquired. Each negotiation will have as one oflits goals the 2 for the parcel . Each negotiation will also include an initial securing of the lowest possible price p g discussion about the possibility of donation or bargain sale to the County. Prior to commencing negotiations , TCF will deliver a written negotiation strategy memo to the County. Tile County' s Authorized Representative will approve the negotiation strategy memo prior to TCF commencing negotiations on any parcel of land . TCF will notify the county when negotiations commence and terminate on each parcel . Qualified TCF negotiators will conduct all negotiations . All information contained in the negotiation file will be available to the county at any time upon its request, provided that any confidentiality requirements established by law or other agreement are complied with. TCF will be compensated for negotiations tasks under this paragraph in accordance with paragraph 3 . 02 . 1 . 04 Progress Reports , Records , Audit. (a) Progress Reports . TCF will provide the County with regular reports on the general status of the projects and parcels in process under this Agreement, and the results and status of ongoing negotiations . TCF will cooperate with the County' s Authorized Representative in the development and generation of an agreed-upon reporting format for this purpose. TCF ' s Authorized Representative will attend meetings of the LAAC as requested with priorI notice from the County' s Authorized Representative. (b) Record and Audit. TCF will maintain all books, documents, files paprs , accounting records and other records pertaining to the work performed under this Areement, and will make such materials available at all reasonable times to the. County upon its , request, during the tern of this Agreement and for three years from the date of final payment by the County under this Agreement, for purposes of audit, inspection or copying for any reasonable purpose by the County. As part of this obligation, TCF will also maintain such property, personnel and financial records as are deemed necessary by the County to insure performance and accountability for all funds expended under this Agreement . 1 . 05 Confidentiality, Conflicts . TCF will maintain the confidentiality of 411 appraisals , offers , and other documents and matters relating to negotiation and acquisition of lands to the extent required by law. To the best of TCF ' s knowledge, no employee, officer, or director of TCF, or any other person associated with TCF , including its Subcontractors, has any financial interest in the land to be acquired under this Agreement, and an affidavit so certifying with respect to individual, identified tracts will be made available upon the request of the County. 1 . 06 Acquisition Documents . TCF will obtain option contracts , or other appropriate purchase agreements, at a stated, negotiated consideration, between the landowner and the County, or other appropriate parties . Option contract forms, and all other forms of agreement will be reviewed and approved by the county. All final option and purchase agreements will be explicitly subject to the approval of the Board of County Commissioners , and landowners will be made aware that such agreements will not bind the County until such approval occurs . Once approved by the Board of County Commissioners , each option or purchase agreemei it will be the property of the County, and the County may proceed to closing in accordance with s ch agreement. 3 1 . 07 Legal and Related Acquisition and Transfer Support. Throughout the process of pre-acquisition, negotiation, contracting and closing, TCF will coordinate with and assist the Program staff and County legal staff as necessary to bring transactions to a successful conclusion. TCF will prepare option and purchase agreements in the course of nego iation, and will prepare other documents relating to the transaction at the request of County legal staff. County legal staff will have the responsibility of reviewing each option or purchase agreement for compliance with law, County requirements , form and legality. County legal staf F will also have closing responsibility; however, TCF will assist in these matters in all appropri ite ways at the request of the County. TCF will provide coordination services for any transaction as to which property is to be ultimately assigned or transferred to a water management di trict or state agency. 1 . 08 Alternative Funding Sources . TCF will provide specific technical and other assistance to the County in obtaining and keeping matching or alternative sources o federal, state, water management district, regional, local government, or private funding for ine acquisition of environmental lands within the County. The County acknowledges and agrees that acquisition under any alternative funding program may require compliance with other specific non-County policies, rules , laws or procedures, and that the county will cooperate as much as possible under County rule and law to meet those other requirements . In the event alternative or matching funding is to be sought, Program staff will in each instance take the lead in applying for such funding, and TCF will provide all reasonable assistance and cooperation in that effort . 1 . 09 Communications . TCF and its Subcontractors will assist the County ' n coordinating and focusing on appropriate communications with media, County Commissioners , County staff, environmental and other community organizations, landowners and other government agencies . TCF and the Subcontractors will be available to speak at public meetings and functions, arrange media events , draft press releases, and provide other needed communications services . It is expressly agreed that any such communication is su ject to the prior approval by the County' s Authorized Representative . 1 . 10 Stewardship . TCF and its Subcontractors will develop conceptual stewardship/management plans for properties acquired or proposed for acquisition. These plans shall include such topics as management cost estimates, fire management procedure , exotic species control, restoration, monitoring, research, endangered species management, volunteer program development, and procurement of outside funding for environmental lands ' management. These conceptual plans shall also include recommendations for public access/passive recreation improvements compatible with site natural resources ; initi14l development cost and annual maintenance cost estimates for such improvements ; and funding source recommendations for such costs . Such services will be provided on an "as-n:eeded, " task order basis, and will be compensated as set forth in section 3 . 03 . Any additional stewardship work will be accompanied by a description of the services needed, in a form sufficignt to permit TCF and its Subcontractors to fully cost such services and provide the County with 1 detailed commitment as to performance of those services at the cost described in the response, Within 40 days after receipt of the task order response for such additional services, the County) will either accept or reject the cost estimate . If the County rejects the cost estimate, and TCF, the 4 Subcontractors and the County cannot reach agreement as the cost of such services itl20 days after such rejection, the County will be free to seek those services outside this greement . 1 . 11 Employees . TCF will hire all employees and manage all Subcontractors it needs to fulfill this Agreement, and will be solely responsible for all matters relating to itsmployees , including compensation, benefits, compliance with applicable withholding and other laws . 1 . 12 Independent Contractor Relationship . This Agreement represents anindependent contractor relationship between TCF and the County, and in no event shall it be consr trued to create an employment relationship , or an agency relationship, express or implied, beeen the parties . ARTICLE H INDIAN RIVER COUNTY RESPONSIBILITIES 2 . 01 Designation of Sites . Processing and negotiations by TCF under this Agreement will be limited to parcels of real property for which the County has requested such action in writing, it being understood that the County may have identified from time to time a number of possible candidates for acquisition. The County will provide TCF with all relevant ' formation as to parcels to be acquired, including but not limited to records of ownership , lando ners addresses and telephone numbers , priorities , time schedules and other matters in the possession of the County. 2 . 02 Appraisals . The County will cooperate with TCF in the drafting and Ipproval of procedures and standards for appraisals for the Program land acquisitions . If the Co mty elects in any instance to obtain appraisals itself under Section 1 . 02 of this Agreement, the county shall fulfill all of its own requirements in regard to providing instructions, soliciting bids or proposals and the like, as well as meeting all the requirements of any other funding program w ich will or may provide additional or matching funding for the project. Also , the County will perform a cursory review, or obtain a full professional review of appraisals, to ensure that they are consistent with County procedures , standards and instruction, and that any assumptions are sound. The County will instruct the appraiser to submit a copy of the final appraisal to TCF , and the County will supply a copy of the review to TCF . Where additional or matching funding has or may be obtained for the acquisition of a parcel, TCF and the County will coordinate the County' s appraisal process with that of the participating agency to insure that applicable procedures and standards of the matching program are complied with. TCF will assist the County, at the County' s request, with any matter relating to the appraisal process consistent with this Agreement, and with the professional status of the individuals involved. 2 . 03 Multi-Party Agreements , Alternative Funding Sources . The County will provide TCF with copies of all multi-party acquisition agreements entered into by the County with the State of Florida or other participating agency, if any. TCF will take such action as is necessary to have any existing agreements amended to add it as a party. The county will retain sole responsibility as the applicant and proponent of County projects for additional, matching or alternative funding sources . TCF will provide all reasonable technical assistance in this regard. Also , at the request of the County in each instance, TCF will communicate and coordinate with 5 government agencies based in Tallahassee and Palatka in regard to specific projects ro osed by the County. 2 . 04 Property Information. The County will provide TCF with copies ofd eds, title information, tax information, aerial photographs , tax maps , tax cards and similar information for each parcel to be acquired. The County will also supply TCF with copies of the Resolution, the Guide, County administrative orders, procedures manuals and other similar documer is bearing in any way on TCF ' s performance of its obligations under this Agreement. 2 . 05 Acquisition Process . The County will assign appropriate staff, including specifically a duly empowered Authorized Representative, and including legal staff, to assist and coordinate with TCF throughout the acquisition process . Such staff will be available : for day-to - day discussion, consultation and review of negotiations, contract, title, survey/mapping and hazardous waste issues, and other issues and documents , which present themselves in the process of acquisition. County staff will prepare and present agenda items necessary to rece ve consideration of each acquisition or other significant issue by the LAAC and the Bo rd of County Commissioners , 2 . 06 Confidentiality, Conflicts . The County will maintain the confidentiality of all appraisals , offers , and other documents and matters relating to negotiation and acquisition of lands to the extent required by law . This confidentiality requirement applies to each member of the County staff, and every other person associated with the County, who works on y acquisition, or has knowledge of any appraisal, negotiation or other confidential matter, and each such person must sign a confidentiality pledge prior to receiving any such confidential information. ARTICLE III COMPENSATION TO TCF 3 . 01 Pre-acquisition Hourly Rate. TCF will be compensated for its services described in section 1 . 02 based on a rate of $ 110/hr. This compensation to TCF includes overhead expenses such as telephone, copying, travel, office supplies and equipment 3 . 02 Negotiations . TCF will be compensated for its services described in section 1 . 03 based on a closing fee of 1 % of the closing price of each transaction. This fee will be payable to TCF out of the proceeds of the closing of each transaction. 3 . 03 Fees for Management Tasks . For work performed pursuant to Section 1 . 10, all management tasks will be committed, performed, invoiced and paid based upon individual task orders prepared by the County for each project. The cost for each conceptual management plan will be negotiated by the parties on a case-by-case basis . 3 . 04 . Payment . TCF shall prepare and submit proper invoices for the costs Incurred in section 1 . 02 to the County' s Finance Department in detail sufficient for proper prepayment and post payment audit. All payments for services shall be made to TCF by the County in 6 Local Government Prompt Payment Act 2005 , Section 218 . 70 , Florida accordance with the p ym ( ) i Statutes, et seq . 3 . 05 Cost of Living Adjustment. The compensation paid to TCF pursuant to paragraphs 3 . 01 and 3 . 03 shall be adjusted annually during the term (as described in paragraph 4 . 01 ) based upon increases in the national Consumer Price Index—All Consumers (the "CPI") at the anniversary compared the CPI at time of the execution of this Agreement. TCF hall, upon each anniversary, compute the adjustment and notify the County in writing . ARTICLE IV TERM 4 . 01 Term. Unless otherwise terminated in accordance with its provisions'p this Agreement will remain in full force and effect for a period of three years from the date hereof. However, nothing shall preclude the County and TCF from extending the term of th� s Agreement by mutual consent, for one year periods, based on the County' s needs in completioln . of the Program. At the end of the three year initial term, and each year thereafter, the Cowity will notify TCF of its desire, if any, to extend this Agreement for an additional year by written notice to TCF at least ninety (90) days prior to the end of the applicable term. -TCF will then respond to the County within thirty (30) days after receipt of such notice . Each extension will lie in writing . . ARTICLE V TERMINATION 5 . 01 Termination. Either party to this Agreement shall have the right to terminate it in the event of a material default of any of its provisions and failure to cure such defau t to the satisfaction of the aggrieved party within thirty (30) days after notice describing the Idefault in detail. In the event of such termination, neither party shall be liable for damages or osts if the failure to perform arises out of causes beyond the control and without the fault or negligence of the party in default. Any notice of default, which is later found to be materially incorrect, to the extent that a default did not actually occur, will be null and void. 5 . 02 In the event either the County or TCF is unable to proceed with this Algreement, due to matters of public convenience or any other circumstances that either party de ermines impairs or interferes with the performance of its duties and obligations under this Agreement, that party may terminate the Agreement by written notice to the other party at least thirty (30) days prior to the effective date of such termination. If the County terminates the Agreement, TCF shall be entitled to receive, and the County shall pay to TCF, the preacquisitior, fees described in paragraph 3 . 01 , the negotiation fees described in paragraph 3 . 02 , and the conceptual stewardship/management plan fees described in paragraph 3 . 03 for any parcel for which it negotiated pursuant to paragraphs 1 . 029 1 . 03 , and 1 . 10 prior to the termination and tb which it would otherwise have been entitled had the termination not occurred, notwithstanding the fact that the closing occurs after the termination. TCF shall also be entitled to any reimbursement for direct expenses paid by TCF pursuant to paragraph 1 . 02 . In any case, the party terminating the 7 ' s request, provide a written statement indicating t at the Agreement will at the other party q , p g termination was without fault and was for the convenience of the terminating party. ARTICLE VI INSURANCE, INDEMNIFICATION 6 . 01 Insurance . TCF will maintain the following insurance coverage thro ghout the performance of its acquisition services under this Agreement : (a) Worker' s compensation insurance for employees of TCF , as required by law . Public liability insurance on a comprehensive basis in an amount no less than $ 300 , 000 combined single limit per occurrence for bodily injury and property damage . (b) The County will be named as additional insured with respect to this Coverage , (c) Automobile liability insurance covering all owned, non-owned and hilred vehicles used in connection with the work to be performed under this Agreement in an amou t not less than $ 300 , 000 per occurrence combined single limit for bodily injury and property ddamage . All such insurance required in this paragraph 6 . 01 will be with companies and on forms acceptable to the County, and shall provide coverage that may not be reduced or caneled unless ten ( 10) days written notice thereof is furnished to the County. Certificates of insur nee (and copies of policies , if requested) will be furnished to the County. 6 . 02 Indemnification. TCF shall indemnify and hold the County harmless from and against any and all claims , liability, losses and causes of action that may arise out of in connection with the wrongful or negligent willful acts or omissions of TCF in the pe formance of this Agreement, and shall defend all suits , in the name of the County where applicable, and shall pay all costs and judgments which may issue therefrom, unless such claims are a res It of the County' s negligence or that of its officers or employees . Notwithstanding the precel ling, TCF shall not be so liable for any hazardous waste or toxic substance clean-up costs or dE mages associated with a Program parcel or any other real property, provided the TCF will inmediately notify the County of any knowledge or information it receives suggesting or evidenging presence of a hazardous or toxic substance on any such lands . ARTICLE VII MISCELLANEOUS 7 . 01 Assignment. TCF may not assign, pledge or otherwise encumber this Agreement, or any portion thereof, in any manner. 7 . 02 Authorized Representatives , Notices . (a) Authorized Representatives . The parties agree that in order to facilitate the orderly and efficient implementation of the Program and the performance of the parties under this Agreement, each party will appoint an Authorized Representative for such party',. The County' s representative will have the authority to transmit instructions , receive information and notices, and interpret and define the County' s policies and decisions pertinent to the 'work 8 covered by this Agreement. TCF ' s representative will have the authority to act on b (half of TCF in regard to all matters involving its performance under this Agreement . The initial uthorized Representatives (until changed by further written notice to either party) shall be : Roland DeBlois for the County, and Matthew Sexton for TCF . (b) Notices . Notices required or permitted to be given under this Agreemt shall be in writing, may be delivered personally or by mail, facsimile, telex , cable, or courier, ' and shall be deemed given when received by the addressee . Such notices shall be given to the Authorized Representative of the party, addressed as follows : If to the County: Roland DeBlois Indian River County Environmental Planning Section 1840 25th Street Vero Beach, FL 32960 Telephone : 772- 226- 1258 Fax : 772- 978 - 1806 If to TCF : Matthew Sexton The Conservation Fund 224 Datura Street, Suite 209 West Palm Beach, FL 33401 Telephone : 561 - 832-7665 Fax : 561 - 832 - 8102 With a copy to : Paul F . Hurt The Conservation Fund 1655 N. Ft. Myer Dr. Suite 1300 Arlington, VA 22209 Telephone : 703 -304- 5372 Fax : 703 -525 -4610 Or such other address, telephone or fax number as either party may from time to time designate by written notice given to the other party. Notwithstanding the foregoing, notice given to the last designated address shall not be deemed ineffective due to a change in address , or thel failure or refusal of the receiving party to accept delivery. 7 . 03 Governing Law . This Agreement will be governed by, and construed',, in accordance with, the laws of the State of Florida. 7 . 04 Unenforceability. If this Agreement contains any provisions construeId to be unenforceable or unlawful by a court of competent jurisdiction, it shall be deemed modified to conform to applicable law ; or, if this would cause an illogical or unreasonable result,1 the 9 eable provision shall be stricken from this uncnfirc r Agreement without affecting the binding . force and effect of the Agreement or any of its other provisions . 7 . 05 Entire Agreement. This Agreement contains the entire agreement of the parties as to this subject matter, and incorporates all prior understandings , whether oral or written, No revision or modification of this Agreement will be effective unless in writing signed by the parties . 7 . 06 No Waiver. Any failure of a party to require strict compliance with any provision of this Agreement shall be construed as a waiver of such provision, and the other party may subsequently require strict compliance at any time, notwithstanding any prior failure to do so . 7 . 07 Force Majeure . If a force majeure or "act of god" event occurs whiccauses Y dela or reasonable likelihood of delay in the performance of the requirements of this Agreement, TCF will promptly notify the County orally and will, within seven (7) calendar days, notify the County in writing of the anticipated length and cause of the delay, the me sures to be taken to minimize it, and the timetable for those measures . The County will considejr any requested extension to the time for performance occasioned by a force majeure eve , and will not unreasonably withhold such extension. A force majeure or "act of god" event will be defined as an act of war, blockade, public riot, lightning fire, flood, hurricane, windstorm, explosion, disruptive crime, failure to receive timely access, or any other event which was not and could not have been reasonably foreseen by the parties , and which is not in the control of TC 7 . 08 Equal Opportunity Employment. TCF agrees that it will not discriminate against any employee or applicant for employment for work under this Agreement on the as is of race, color, religion, sex, age or national origin, and will take affirmative steps to comply with Executive Order No . 11246 entitle "Equal Employment Opportunity" as amended b Executive Order No . 11375 , and as supplemented by Department of labor regulations (41 CFR, Part 60) . 7 . 09 Independent Contractor. It is specifically acknowledged and agreed by the parties hereto that TCF is and shall be, in the performance of all services and activities undr this Agreement, an independent contractor, and not an employee, agent, or servant of theCounty. All persons engaged in any of the services performed pursuant to this Agreement shall at all times , and in all places, be subject to TCF s sole direction, supervision, and control, ' TCF shall exercise control over the means and manner in which TCF and its employees perfoihn the Services , and in all respects TCF ' s relationship and the relationship of its employees to the County shall be that of an independent contractor performing solely under the terms ', of the Agreement and not as employees , agents, or servants of the County. 7 . 10 Public Records . TCF shall comply with the provisions of Chapter 1 9 , Florida Statutes (Public Records Law) as applicable in connection with this Agreement. 7 . 11 Counterparts . This Agreement may be executed in one or more counterparts , each of which shall be deemed to be an original copy and all of which shall constitute but: one and the same instrument. 10 parties have caused this Agreement to be duly ted on the IN WITNESS WHEREOF, the partgr y execu date set forth above . INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS Attest : J . K. Barton, Clerk -` � - By B y: Qi ' (Seal) Deputy Clerk Thomas S . Lowther, Chairman Date BCC approved : 11 - 15 - 05 PIOEAPPROVED AS TO FORM LEGAL SUFFICIENCY tph A. Baird,,•: ,� S, ly Adnunisttator Marian E. Fell, Assistant County Attorney THE CONSERVATION FUND CHARITABLE TRUST DATED OCTOBER 16 , 19989 AS AMENDED Th"eiservation nd, Trustee By: Richard L . Erdmann, Executive Vice President Date : 11