MEMORANDUM OF UNDERSTANDING BETWEEN THE FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION AND THE WILDLIFE FOUNDATION OF FLORIDA AND THE U.S. FISH AND WILDLIFE SERVICE FOR A CRESTED CARACARA CONSERVATION FUND THIS MEMORANDUM OF UNDERSTANDING (MOU) is entered into by and between the FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, 620 South Meridian Street, Tallahassee, Florida 32399-1600, hereafter called COMMISSION, the WILDLIFE FOUNDATION OF FLORIDA, INC., Post Office Box 11010 Tallahassee, FL 32302, hereafter called FOUNDATION, and the U.S. FISH AND WILDLIFE SERVICE, 1339 20 th Street, Vero Beach, Florida 32960-3559, hereafter called USFWS. The purpose of this MOU is to establish an agreement between the parties to develop a Conservation Fund (FUND) for the conservation of the crested caracara (also known by the names Audubon s crested caracara, Polyborus plancus audubonii, or Caracara cheriway), a federally listed threatened species that occurs in Florida. Financial contributions donated to the FUND as a result of measures and recommendations described in Biological Opinions, concurrence letters, or technical assistance letters prepared by the USFWS under section 7(a)(2), (a)(1), or 10(a)(1)(a) of the Endangered Species Act of 1973, as amended ( Act ), and donations made by individuals, corporations, and other interested parties will be used to support efforts to evaluate effects of habitat conversion on crested caracara habitat use, movement, and demography and other research, monitoring, or management efforts for the conservation of the crested caracara as mutually agreed by the COMMISSION and USFWS. Establishment of the FUND provides a financial instrument within which deposits and other donations can be made. Deposits made into the FUND will be used to support projects for crested caracara as described below. 1. RESPONSIBILITIES OF THE PARTIES. A. The COMMISSION agrees to: 1. Appoint a Project Officer to represent and coordinate the COMMISSION s obligations under this MOU. 1 of 8
2. If necessary for expenditure of funds by the COMMISSION, develop and execute an agreement with the FOUNDATION to manage and expend donations and contributions to the FUND for the purposes described in this MOU. B. The FOUNDATION agrees to: 1. Establish an account that shall be managed as the FUND and be responsible for distribution of all monies from the FUND for the purposes described in this MOU and any subsequent agreements. 2. Deposit all donations and contributions received pursuant to this MOU into the FUND. 3. The FOUNDATION shall invest and reinvest the principal and income of the FUND in one or more investments and keep the Fund invested as a single fund, without distinction between principal and income, at the direction of the USFWS. 4. Develop and execute agreements with the USFWS and, if necessary, the COMMISSION to manage and expend donations and contributions to the FUND for the purposes described in this MOU. 5. Appoint a Project Officer to represent and coordinate the FOUNDATION s obligations under this MOU. 6. Prepare and submit an annual financial report to the COMMISSION and the USFWS detailing all revenues to and expenditures from the FUND no more than 60 days after June 30 of each year. 7. Allow representatives of the USFWS and COMMISSION to periodically inspect, review and audit any and all information or documentation relating to the management and administration of the FUND, including but not limited to the source and application of all funds, books, vouchers, records, reports, cancelled checks, receipts and payables. 8. Maintain all FUND information and/or documentation for a period of seven (7) years, including but not limited to information and documentation existing upon the termination of the MOU, as applicable to all State and Federal laws. C. The USFWS agrees to: 1. Appoint a Project Officer to represent and coordinate the USFWS s obligations under this MOU. 2. Direct all donations resulting from measures and recommendations described in USFWS generated Biological Opinions, concurrence letters, and technical assistance letters and from individuals, corporations, and other interested parties wishing to make a donation to support the conservation of the crested caracara in Florida to the FOUNDATION for deposit in the FUND. Page 2 of 8
3. Develop and execute an agreement with the FOUNDATION to manage and expend donations and contributions to the FUND for the purpose of conducting studies to evaluate the effects of habitat conversion on habitat use, movement, and demography of crested caracaras. 4. Provide the COMMISSION the opportunity to review and comment on any scopes of work and deliverables relating to studies conducted pursuant to this MOU. The timeframe for completion of such reviews shall be as mutually agreed by the COMMISSION s and USFWS s Project Officers. D. The parties mutually agree that: 1. Donations to the fund should be addressed to the FOUNDATION s Project Officer and be clearly marked for deposit to the Crested Caracara Conservation Fund and be accompanied by a completed deposit form, the format of which shall be agreed to by the Project Officers. 2. Monies deposited in the FUND may be expended at the discretion of the USFWS on studies to monitor the effects of habitat conversion on habitat use, movement, and demography of crested caracaras. Deposited funds may also be used for other crested caracara conservation purposes with mutual, written agreement of the COMMISSION s and USFWS s Project Officers. 3. All deposits to the FUND will be subject to a one time 3% administrative charge on behalf of the FOUNDATION. The FUND will be subject to an additional investment management fee set annually by the FOUNDATION s Board of Directors in accordance with the FOUNDATION s established investment policy. Any change in the annual management fee set in accordance with the FOUNDATION s established investment policy shall be distributed to the Project Officers named in this MOU at least 30 days prior to the effective date of the change in fee. 4. Notwithstanding anything contained herein to the contrary, third parties seeking incidental take statements from the USFWS remain ultimately and solely liable for satisfying all of the conditions under any permit or other regulatory document, and the COMMISSION and FOUNDATION shall not be liable in any manner whatsoever to USFWS or those third parties, or any other individual or entity with respect to satisfaction of any of the conditions or requirements of any permit or other regulatory document that remain to be satisfied. 5. Whenever and as often as it shall be reasonably requested to do so by the other parties hereto, the requested party shall execute, acknowledge, and deliver, or cause to be executed, acknowledged and delivered, any and all further instruments as may reasonably be necessary in order to consummate the transactions provided for in, or contemplated by, this MOU, and to carry out the purpose and intent of this MOU. 6. Any party may change its Project Officers by written notice to the other parties. Page 3 of 8
2. TERM OF THE MOU. It is understood and agreed that the relationship established by this MOU is meant to be for the benefit of the parties, and that this MOU shall be effective on the last date of execution by the parties and shall remain in effect until terminated by any party or suspended or modified in writing by an appropriate amendment executed by the parties. 3. TERMINATION. A. Any party to this Agreement may terminate this MOU by giving written notice to the other parties specifying the termination date, by certified mail, return receipt requested, at least 30 days prior to the termination date specified in the notice. B. Within 45 days of termination, the FOUNDATION shall transfer any and all monies in the FUND less any outstanding obligations or encumbrances to an account to be specified by the USFWS. The USFWS shall provide such account information to the FOUNDATION within 30 days of the receipt or issuance of a termination notice. 4. NOTICES. All notices and correspondence concerning this MOU and subsequent projects shall be delivered to the Project Officers at the following addresses or such changed address or addressee as may be provided by notice. A notice or other communication shall be deemed received by the addressee on the next business day after having been placed in overnight mail with the U. S. Postal Service, or other overnight express service such as FedEx, DHL, UPS, or similar service. Notices sent by means other than overnight delivery shall be deemed received when actually received by the addressee: USFWS COMMISSION Ms. Kristi Yanchis Mr. Stuart Cumberbatch U.S. Fish & Wildlife Service Florida Fish &Wildlife Conservation Commission 1339 20 th Street 620 South Meridian Street Vero Beach, Florida 32960-3559 Tallahassee, Florida 32399-1600 Phone: 772-562-3909 ext. 313 Phone: 850-488-3831 Fax: 772-562-4288 Fax: 850-921-1847 Kristi_Yanchis@fws.gov Stuart.Cumberbatch@MyFWC.com Page 4 of 8
FOUNDATION Mr. Will Bradford Wildlife Foundation of Florida Post Office Box 11010 Tallahassee, FL 32302 Phone: 850-410-0656 ext.17138 Fax: 850-921-5786 Will.Bradford@MyFWC.com 5. AUTHORITIES. It is understood and agreed that each party operates under its own legal authorities, policies and administration, and each party s obligations under this MOU are thereby limited. It shall be the responsibility of each party to interpret its own authorities and policies, and make decisions as required under law and policies applicable to each. This MOU is hereby entered into under the following authorities, and other applicable law: A. COMMISSION: Article IV, Section 9, Florida Constitution. B. USFWS: Act 16 U.S.C. 1534 et seq., wherein the USFWS is responsible for the listing and recovery of wildlife listed under the Act, and for cooperating with State and Federal agencies and others to achieve recovery of listed species. In addition, the USFWS is authorized to provide assistance to, and cooperate with, private organizations in activities that provide for the management, conservation, and protection of fish, wildlife, and plant resources (Fish and Wildlife Act of 1956, 16 U.S.C. 742f(a)-754, and the Fish and Wildlife Coordination Act, 16 U.S.C. 661-66c). C. FOUNDATION: Chapter 372.0215, Florida Statutes. 6. PUBLIC RECORDS. All records in conjunction with this MOU shall be public records in accordance with the laws applicable to the parties. 7. PUBLIC LAWS. Nothing herein contained in this MOU shall be deemed to be inconsistent with or contrary to the purpose of or intent of any Act of Congress or the laws of the State of Florida and the District of Columbia establishing, affecting, or relating to the MOU. 8. LIABILITY. Each party hereto agrees that it shall be solely responsible for the negligent or wrongful acts of its employees and agents. However nothing herein shall constitute a waiver by any party to this Agreement of its sovereign immunity or statutory limitations on liability. 9. PROHIBITION OF DISCRIMINATORY VENDORS. In accordance with Section 287.134, Florida Statutes, an entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal or reply on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a Page 5 of 8
supplier, or consultant under a contract with any public entity; and may not transact business with any public entity. 10. NON-DISCRIMINATION. All activities pursuant to this MOU and the provisions of Executive Order No. 11246, 3 C.F.R. 339 (1964-65) shall be in compliance with the requirements of Title VI of the Civil Rights Act of 1964 (78 Stat. 252; 42 U.S.C. 2000d et seq.); Title V, Section 504 of the Rehabilitation Act of 1973 (87 Stat. 394; 29 U.S.C. 794); the Age Discrimination Act of 1975 (89 Stat. 728; 42 U.S.C. 6101 et seq.); and with all other Federal laws, regulations, and policies prohibiting discrimination on the grounds of race, color, national origin, handicap, religion, sex, or sexual orientation, in providing for facilities and service to the public. 11. APPROPRIATIONS. A. Nothing contained in this MOU shall be construed as binding the USFWS to expend in any one fiscal year any sum in excess of appropriations made by Congress, and available for the purposes of this MOU for that fiscal year, or as involving the United States in any contract or other obligation for the further expenditure of money in excess of such appropriations. B. The COMMISSION s obligation to perform under this MOU is contingent upon an annual appropriation by the Legislature. 12. NON-ASSIGNMENT. This MOU may not be assigned in whole or in part without the written approval of all parties. Any such assignment or attempted assignment shall be null and void. 13. SEVERABILITY AND CHOICE OF VENUE. This MOU has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible, each provision of this MOU shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this MOU shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this MOU. Any action in connection herewith, in law or equity, shall be brought in Leon County, Florida, to the exclusion of all other lawful venues. 14. NO THIRD PARTY RIGHTS. The parties hereto do not intend nor shall this MOU be construed to grant any rights, privileges or interest to any person not a party to this MOU. 15. JURY TRIAL WAIVER. As part of the consideration for this MOU, the parties hereby waive trial by jury in any action or proceeding brought by any party against any other party pertaining to any matter whatsoever arising out of or in any way connected with this MOU, or with the products or services provided under this MOU; including but not limited to any claim of quantum meruit. Page 6 of 8
16. ENTIRE AGREEMENT. This MOU with all incorporated attachments and exhibits represents the entire agreement of the parties. This MOU may be amended by mutual written agreement of the parties. The rest of this page intentionally left blank. Page 7 of 8
IN WITNESS WHEREOF, the parties hereto have caused this MOU to be executed through their duly authorized signatories on the day and year last below written. U.S. FISH AND WILDLIFE SERVICE FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION Paul Souza Field Supervisor Vero Beach, Florida Kenneth D. Haddad Executive Director Date Date APPROVED as to form and legality: Commission Attorney WILDLIFE FOUNDATION OF FLORIDA, INC. Brett Boston Executive Director Date Page 8 of 8