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Agenda 06/12/2012 Item #16E16/12/2012 Item 16.E.1. EXECUTIVE SUMMARY Recommendation to approve a contract with Ecological Consulting Solutions Inc., to receive up to 28 gopher tortoises relocated from the Gordon River Greenway Park Project Site to the NW Hackletrap Long Term Protected Gopher Tortoise Recipient site in Hendry County for the estimated amount of $22,400 and to approve the payment of a $7,100 mitigation contribution to the Florida Fish and Wildlife Conservation Commission (FWC). OBJECTIVE: To obtain approval of a contract providing for the relocation of gopher tortoises to abide by County and FWC regulations for development within a gopher tortoise habitat. CONSIDERATIONS: Staff has estimated that up to 28 gopher tortoises may need to be relocated from the Gordon River Greenway Park to accommodate development of a parking area and multi -modal trail system. Per FWC gopher tortoise permitting guidelines, Collier County must pay a mitigation contribution to FWC that is based upon the number of tortoises being relocated. This mitigation contribution is in addition to any fees paid to a Gopher Tortoise Recipient Site. The FWC mitigation contribution for tortoises relocated to a Long -Term Protected Site is $200 for the first group of 5 tortoises and $300 for each additional tortoise. The FWC mitigation contribution for tortoises relocated to a Short- Term Protected Site is $200 for the first group of 5 tortoises and $3,000 for each additional tortoise. FWC requires that a Conservation Easement be put over a property before it can be permitted as a Long - Term- Protected Gopher Tortoise Recipient Site. Because of specific language in the Conservation Easement Agreement that is required by the U.S. Fish and Wildlife Service, the Caracara Prairie Preserve Conservation Easement cannot be executed before the preserve is permitted as a panther mitigation Conservation Bank. As a result, the Conservation Collier Caracara Prairie Preserve Gopher Tortoise Recipient Site is currently permitted as a Short-Tenn Protected Site. Once the Conservation Easement is in place, the preserve will be permitted as a Long -Term Protected Recipient Site. If the 28 Gordon River Greenway tortoises are relocated to the Caracara Prairie Preserve at this time, Collier County's FWC mitigation contribution will be $69,200; however, if the same 28 tortoises are relocated to a private Long - Term Protected Site, Collier County's FWC mitigation contribution will be $7,100 – a difference of $62,100. Because the use of Collier County's Caracara Prairie Preserve Gopher Tortoise Recipient Site is not practical for this project, quotes were obtained from the three Long -term Protected Gopher Tortoise Recipient Sites within 100 miles of the Gordon River Greenway project site: NW Hackletrap (Ecological Consulting Solutions Inc.) - $800 per tortoise Longino Ranch (DRMP, Inc.) - $1,100 per tortoise Heritage Ranch (Eco Consultants, Inc.) - $1,000 per tortoise + transport The lowest bid of $800 per tortoise belongs to Ecological Consulting Solutions, Inc. FISCAL IMPACT: The cost to relocate up to 28 tortoises from the Gordon River Greenway to the NW Hackletrap site will not exceed $29,500 ($22,400 to be paid to Ecological Consulting Solutions, Inc and $7,100 to be paid to FWC). Funds for the relocation are currently available in Parks and Recreation Fund 306 – Project 80065 ($24,600) and in Conservation Collier Fund 174 ($4,900). LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT. Packet Page -1873- 6/12/2012 Item 16.E.1. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this Executive Summary. RECOMMENDATION: That the Board of County Commissioners authorizes the chairman to sign a contract with Ecological Consulting Solutions Inc., to receive up to 28 gopher tortoises relocated from the Gordon River Greenway Park Project Site to the NW Hackletrap Long Term Protected Gopher Tortoise Recipient site in Hendry County for the estimated cost of $22,400 and to approve payment of a $7,100 mitigation contribution to the Florida Fish and Wildlife Conservation Commission. Prepared By: Melissa Hennig, Principal Environmental Specialist, Department of Facilities Management Attachments: Gopher Tortoise Recipient Site Agreement Packet Page -1874- 6/12/2012 Item 16.E.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.E.1. Item Summary: Recommendation to approve a contract with Ecological Consulting Solutions Inc., to receive up to 28 gopher tortoises relocated from the Gordon River Greenway Park Project Site to the NW Hackletrap Long Term Protected Gopher Tortoise Recipient site in Hendry County for the estimated amount of $22,400 and to approve the payment of a $7,100 mitigation contribution to the Florida Fish and Wildlife Conservation Commission (FWC). Meeting Date: 6/12/2012 Prepared By Name: HennigMelissa Title: Environmental Specialist, Principal,Facilities Management 5/3/201210:00:48 AM Submitted by Title: Environmental Specialist, Principal,Facilities Management Name: HennigMelissa 5/3/2012 10:00:49 AM Approved By Name: CampSkip Title: Director - Facilities Management,Facilities Manage Date: 5/3/2012 1:04:16 PM Name: WardKelsey Title: Manager - Contracts Administration,Purchasing & Ge Date: 5/3/2012 1:32:51 PM Name: pochopinpat Title: Administrative Assistant,Facilities Management Date: 5/4/2012 2:22:24 PM Name: WoodLyn Title: Contracts Specialist,Purchasing & General Services Packet Page -1875- Date: 5/4/2012 2:34:07 PM 6/12/2012 Item 16.E.1. Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene Date: 5/7/2012 7:05:06 AM Name: RubertoTony Date: 5/10/2012 2:34:12 PM Name: WilliamsBarry Title: Director - Parks & Recreation,Parks & Recreation Date: 5/10/2012 5:32:42 PM Name: PriceLen Title: Administrator, Administrative Services Date: 5/11/2012 9:07:50 AM Name: TeachScott Title: Deputy County Attorney,County Attorney Date: 5/24/2012 1:30:16 PM Name: KlatzkowJeff Title: County Attorney Date: 5/25/2012 8:56:16 AM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 6/5/2012 2:15:34 PM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 6/5/2012 3:57:21 PM Packet Page -1876- 6/12/2012 Item 16.E.1. GOPHER TORTOISE RECIPIENT SITE AGREEMENT THIS GOPHER TORTOISE RECIPIENT SITE AGREEMENT (hereinafter "Agreement ") is made this day of , 2012, by and between Ecological Consulting Solutions Inc., (hereinafter "ECS "), whose mailing address is 235 Hunt Club Blvd, Suite 202, Longwood, FL 32779 and Collier County Florida, a political subdivision of the State of Florida (hereinafter "Client ") whose mailing address is 3335 Tamiami Trail East, Naples, Florida 34112 (hereinafter collectively the "Parties "). WITNESSETH: WHEREAS, ECS maintains NW Hackletrap (hereinafter referred to as the "Recipient Site "); a gopher tortoise recipient site located in Glades County, Florida that has been approved for the release of gopher tortoises and commensal species by the Florida Fish and Wildlife Conservation Commission; WHEREAS, ECS agrees to provide area within the recipient site and Client (or approved agents of the client) agrees to provide gopher tortoises and any commensal species from a permitted relocation project with the Florida Fish and Wildlife Conservation Commission. Client (or agents of the client) agrees to the terms and conditions below to be used to relocate gopher tortoises and commensal species associated with the proposed development of a project known as Gordon River Greenway Tortoises (hereinafter "Project ") WHEREAS, the acreage of lands to be reserved from ECS has been determined by Client (or agent of the client) based on an estimated 28 gopher tortoises; and WHEREAS, ECS requires as part of this Agreement for Client (or agent of the client) to remit this Agreement to ECS in order to allow Client (or agent of the client) to submit the recipient site information for the offsite relocation permit; NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto, each intending to be legally bound, do hereby warrant and agree as follows: TERMS OF AGREEMENT Payment The price per tortoise is Eight Hundred dollars ($800.00) payable in check or cashier's check. There will be no fee for tortoises with a carapace less than 130mm. Should only tortoises with a carapace less than 130mm be captured, ECS will charge a pick -up and delivery fee of Five Hundred Dollars ($500.00). ECS does not require a deposit. Payment will be made upon receipt of a proper invoice and upon approval by the Project Manager, or her designee, and in compliance with 1 of 5 6/12/2012 Item 16.E.1. Chapter 218, Florida Statutes, also known as the "Local Government Prompt Payment Act." 2. Late Fee Invoices past payment due date will be subject to interest in accordance with Chapter 218, Florida Statutes, also known as the "Local Government Prompt Payment Act." 3. Recipient Site Reservation. ECS will provide the necessary reservation letter and coordination with recipient site owners. The aforementioned per tortoise fee of $800.00 is only valid through October 12, 2012. If the FWC gopher tortoise relocation permit is received prior to or on October 12, 2012, the agreed upon tortoise fee is valid for the duration of the permit. If ECS does not receive a copy of the FWC gopher tortoise relocation permit by that date, that fee is subject to change; any increase in the amount of the fee, however, shall only be binding if the parties mutually amend this Agreement in writing ECS does not guarantee the per tortoise fee after October 12, 2012. 4. Permit and Completion Report. Client (or agents of the client) agrees to provide ECS with a signed copy of the relocation permit prior to initial delivery of gopher tortoises. Client (or agent of the client) also agrees to provide ECS with a copy of the completion report. This information is necessary for our reporting requirements with the Florida Fish and Wildlife Conservation Commission. Failure to do so can result in the denial of any future requests for use of the recipient site. 5. Gopher Tortoise Release. ECS will release the gopher tortoises into the designated portion of the area of the recipient site. ECS will also provide starter burrows for each gopher tortoise. Only ECS and the Florida Fish and Wildlife Conservation Commission staff are allowed onsite. 6. Reservation Time Frame: ECS will reserve the Client's (or agents of the clients) release area within the area for the duration of time associated with the gopher tortoise relocation permit up to one (1) year after the issuance of the permit. Upon one (1) year after the original issuance of the relocation permit by FWC, ECS will no longer reserve said area unless written request is received from Client (or agent of client). If no written request is received, said release area will no longer be available. Also, if the entirety of the release area is not filled by the maximum number of gopher tortoises permitted, the remaining area will not be reserved for future relocations for the Client, or agents of the client. ECS reserves the right to use any remaining lands for other relocations. 7. Contacting of Recipient Site Landowners. The Client (or agents of the client) shall at no time, contact or attempt to contact the recipient site landowners directly or indirectly unless consent is expressly given by ECS. Should the Client (or agents of the Client) attempt to contact the recipient site Landowners directly or indirectly without expressed consent of ECS, the Client (and / or agents of the client) shall 2 of 5 6/12/2012 Item 16.E.1. forfeit all current and /or future opportunity for gopher tortoise relocations with the recipient site Landowners. 8. Breach. If, for some reason, payments have not been conveyed to ECS by the Client (or agents of the client) for gopher tortoises received, this action will constitute a breach of the Agreement by Client, and therefore, ECS reserves the right to refuse any additional gopher tortoises until all monies have been received from the Client and notification to the Florida Fish and Wildlife Conservation Commission. This Agreement may be terminated by either party for cause upon ten (10) days' notice or by either party for convenience upon no less than thirty (30) days' advance written notice. Termination of this Agreement for cause shall include, but not be limited to, failure to suitably perform the work, failure to continuously perform the work in a manner calculated to meet or accomplish the objectives of Client as set forth in this Agreement, or multiple breach of the provisions of this Agreement notwithstanding whether any such breach was previously waived or cured. in the event this Agreement is terminated for convenience, ECS shall be paid for any services performed to the date the Agreement is terminated. 9. Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida., as well as in accordance with all applicable laws, statutes, including the Local Government Prompt Payment Act (218.735 and 218.76 F.S.) as amended in the 2010 legislative session, ordinances, codes, rules, regulations- and requirernents-of any governmental agencies, which regulate or have jurisdiction over the Project or the services to be provided and performed by ECS hereunder. The venue of any action to enforce the terms of this Agreement shall be in Collier County, Florida. 10. Entire Agreement. This Agreement contains the entire understanding between the Client and ECS and the Client and ECS agree that no representation was made by or on behalf of the other which is not contained in this Agreement, and that in entering into this Agreement neither relied upon any representation not especially herein contained. This Agreement shall not be binding upon the Client and ECS until executed by an officer of the Client and ECS, if applicable its corporate seal affixed, and an executed copy of the Agreement has been delivered to the Client and ECS. 11. Amendments and Waivers This Agreement may not be amended, modified, altered, or changed in any respect whatsoever, except by a further agreement in writing duly executed by each and all of the parties hereto. No failure by Client or ECS to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy upon a breach thereof shall constitute a waiver of any such breach or of such any other covenant, agreement, term or condition. Any party hereto, by notice, may but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation or covenants of any other party hereto. No waiver shall affect or 3 of 5 6/12/2012 Item 16.E.1. alter this Agreement, but each and every covenant, agreement, term and condition of this Agreement shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. 12. Captions; Genders. Captions used in this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. Whenever used, the singular shall include the plural, the plural shall include the singular, and gender shall include all genders. 13. Partial Invalidity. In case any term of this Agreement shall be held to be invalid, Illegal or unenforceable, in whole or in part, neither the validity of the remaining part of such term or the validity of any other term of this Agreement shall in any way be affected thereby. 14. Calculation of Time. Time periods of five (5) days or less shall be computed without including Saturdays, Sundays, or national legal holidays, and any time period existing on a Saturday, Sunday or national legal holiday shall be extended until 5:00 p.m. on the next business day. 15. Effective Date. This Agreement is effective on the date on which the last of the parties signs this Agreement. 16. Typewritten or Handwritten Provisions. Handwritten provisions and /or typewritten provisions- insertedin this Agreement ,-which- are - initialed -by -both parties,-shall- control over the printed provisions in conflict therewith. 17. Counterparts. This Agreement may be executed in any number of counterparts, any one and all of which shall constitute the agreement of the parties and shall be deemed one original instrument. 18. Time is of the Essence. Time is of the essence under the terms of this Agreement 19. Indemnification. To the maximum extent permitted by Florida law, ESC shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of ESC or anyone employed or utilized by ESC in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. 20. 4of5 6/12/2012 Item 16.E.1. IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, to become effective as of the date and year first above written and in accordance with the terms of this Agreement. By: Walter Griffy, President Executed on: April 25, 2012 ECS: Ecological Consulting Solutions Inc. Client: Collier County, Florida BOARD OF COUNTY COMMISSIONERS ATTEST: COLLIER COUNTY, FLORIDA Dwight E. Brock, Clerk of Courts By: Dated: (SEAL) Approved as to form and legal Sufficiency. S� Deputy County Attorney Print Name 5 of 5 Fred W. Coyle, Chairman Executed on 2012