REQUEST FOR BID

COUNTY OF DANE, WISCONSIN

Bid #106012Aquatic Plant Harvester

Bids must be received no later than

2:00 p.m., February 15, 2006

SPECIAL INSTRUCTIONS:1. Place the signed Signature Affidavit as the first page of your bid.2. Label the lower left corner of your sealed submittal envelope as follows:

Bid #106012Aquatic Plant Harvester2:00 p.m., February 15, 2006

Bidders must submit an original and 2 copies3. Mail or Deliver to:

DANE COUNTY PURCHASING DIVISIONROOM 425 CITY-COUNTY BLDG210 MARTIN LUTHER KING JR BLVDMADISON WI 53703-3345

For further information regarding this bid,Contact Francisco Silva at (608)267-3523

silva@co.dane.wi.us

Issued byDane County Purchasing Division

Department of Administration

January 17, 2006

LATE BIDS, AND/OR UNSIGNED BIDS WILL BE REJECTED

http://www.co.dane.wi.us/purch/purch.htm

106012 1

REQUEST FOR BID

COUNTY OF DANE, WISCONSIN

SIGNATURE AFFIDAVIT

In signing this bid, we also certify that we have not, either directly or indirectly, entered into any agreement or participated in any collusion or otherwise taken any action in restraint of free competition; that no attempt has been made to induce any other person or firm to submit or not to submit a bid; that this bid has been independently arrived at without collusion with any other bidder, competitor or potential competitor; that this bid has not been knowingly disclosed prior to the opening of bids to any other bidder or competitor; that the above statement is accurate under penalty of perjury.

The undersigned, submitting this bid, hereby agrees with all the terms, conditions, and specifications required by the County in this Request for Bid, and declares that the attached bid and pricing are in conformity therewith.

Company Name (print or type) Bidder’s Name and title (print or type)

Address Signature

Date

Phone Phone

Fax Fax

Person the County can contact regarding questions about your bid (if different from above).

Name

Phone Fax

Vendor Registration

All bidders wishing to receive a bid/proposal award must be a paid registered vendor with Dane County. Prior to the bid opening, you can complete a registration form online by visiting our web site at http://www.co.dane.wi.us/purch/purch.htm, or you can obtain a Vendor Registration Form by calling 608.266.4131. Your completed Vendor Registration Form and Registration Fee must be received prior to the bid award.

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REQUEST FOR BID

COUNTY OF DANE, WISCONSIN

PRICING

Company Name___________________________________________

Aquatic Plant Harvester New, current model harvester, per specifications: $__________

Make and model number of units offered: ___________________________________

Warranty: ___________________________________

DeliveryDelivery to Madison, WI :

TOTAL DELIVERED PRICE: $__________

Delivery time: _______________________________________

CERTIFICATES OF ORIGIN: One (1) original Manufacturer’s Certificate of Origin shall beprovided for each piece of equipment purchased through this RFB.

Bids should not include Federal Excise and Wisconsin Sales Taxes, as Dane County is exempt from payment of such taxes. Sec.State Statute No. 77.54(9a). Wis. Stats. The Dane County’s CES number is ES 41279.

Payment terms: Net 30

Quote/Bid price delivered FOB Destination To:Madison WI 53703

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DANE COUNTY, WISCONSIN

AQUATIC PLANT HARVESTER

Dane County invites and will accept bids for one new, current production Aquatic Plant Harvester and two barges. The Dane County Parks/Land and Water Resources as represented by Purchasing Division, intends to purchase one (1) harvester and two (2) Barges.

The harvester specified herein by the Dane County shall be used shall be used on county lakes.

The specifications below describe acceptable units. Minor variations in specification may be accepted if, in the opinion of County staff, they do not adversely affect the quality, maintenance or performance of the equipment. Any exceptions from these requirements must be identified in detail and must include a description of why the proposed item(s) meets exceeds or is irregular from the specification.: The Dane County reserves the right to accept or reject any and all bids, to waive informalities and to choose the bid that best meets the specifications and needs of the County.

Any deviation from the minimum specifications stated herein must be identified in detail on the form provided and must include a description of how the proposed item/s differ from the bid requirements, along with detailed justification for such deviation. Bidder shall include photos and schematics as necessary, for complete

CERTIFICATES OF ORIGIN: One (1) original Manufacturer’s Certificate of Origin to certify compliance with the The Jones ACT, ( Attached ) shall be provided for each piece of equipmentpurchased through this bid.

If no variations are listed, it will be assumed that all specifications are met. Include descriptive literature with your bid.

Note to Bidders:

Any questions concerning this Bid must be submitted in writing by mail, fax or email at least FIVE WORKING DAYS prior to bid opening . Requests submitted after that time WILL NOT be considered.

Francisco SilvaDane County Purchasing DivisionRoom 425 City County Building210 Martin Luther King Jr. BlvdMadison, WI 53703-3345VOICE: (608) 267-3523FAX: (608) 266-4425Email: silva@co.dane.wi.us

In the event that it becomes necessary to provide additional clarifying data or information, or to revise any part of this RFB, revisions/amendments and/or supplements will be provided to all recipients of this initial RFB/RFP. The Purchasing Division has the sole authority to for modifications of this specifications and or bid.

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EQUIPMENT SPECIFICATIONS

1. AQUATIC PLANT HARVESTER

1.1. The aquatic plant harvester sought herein shall be a completely self-contained system, self-powered, capable of operating on the water and transportable over public roads.

1.2. The harvester shall be capable of cutting, loading and unloading both bottom rooted and floating aquatic plants, and marine floatables without manual assistance.

The harvester and barges must be built with mounting bosses and support to accept the County's mobilizer wheel assemblies. County will provide specifications for mounting points.

2. FLOTATION BARGE

2.1. HULL : The vessel hull shall consist of a rectangular shaped barge with no add-on pontoons, protrusions or sponsons. Catamaran hulls are not acceptable.

2.2. CONSTRUCTION : The barge shall be constructed of ⅛” sheet 304L stainless steel welded over a substantial internal angle iron framework. Internal support structure shall consist of angle iron cubes on 24” centers or less throughout the barge. All deck load bearing areas must be reinforced with additional internal support angles and ¼” plate steel on the deck.

All barge outer skins and internal structures shall be fabricated using 304L stainless steel.

2.3. REINFORCEMENT RIB : Barge sidewalls, port and starboard, shall be formed and constructed with a reinforcement rib measuring approximately 4” tall and extending the entire length of the barge. This rib shall also serve as a maximum draft / full load indicator and shall be accented with high visibility pin striping, which shall also measure approximately 4’ tall and extend the entire length of the barge.

2.4. BOTTOM PROTECTION : Replaceable 4” x 4” high density polyethylene runners shall protect the barge bottom and assist in guiding the harvester on and off a trailer.

2.5. COMPARTMENTS : The hull shall have a minimum of four (4) airtight and watertight compartments, each fully tested under pressure. Each compartment shall have a 2" NPT inspection plug on the deck and a ½” NPT drain plug on the opposite lower side.

2.6. OUTFITTING : Four (4) lifting eyes and four (4) tiedown cleats shall be located near the four corners of the barge deck. Anti-skid pads shall be mounted to the barge deck on both the port and starboard sides.

2.7. BOW : The bow of the hull shall be designed in a “V” shape to reduce resistance when cutting through the water, to enhance the capture of vegetation and debris on the pick up conveyor and to increase stability. A heavy duty clevis shall be mounted to the forward center of the barge.

2.8. DIMENSIONS: Barge dimensions shall measure:

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Length:28’ 0”Width:11’ 1”Height: 26”

2.9. DRAFT REQUIREMENTS : Maximum barge drafts shall measure:

Empty: 11”Fully Loaded: 21” (maximum)

3. #1 CONVEYOR: CUTTING & COLLECTION HEAD

3.1. CONSTRUCTION : The cutting and collection head shall consist of a bow mounted structural pivoting frame supporting the pickup/loading conveyor. The conveyor bed shall be made of structural steel with flat expanded metal sidewalls.

3.2. FUNCTION : The cutting and collection head shall serve to simultaneously cut aquatic plants, and/or to collect floating vegetation and debris, and transfer that material from the water into the storage hold container. Plants and refuse shall be brought on board by means of hydraulically powered conveyor belts traveling at 85’ to 100’ per minute.

3.3. The cutting and collection head shall be capable of rising out of the water by 18” or lowered to a depth of up to 5’ 6”. Elevation and adjustment shall be accomplished by means of two (2) single acting hydraulic cylinders.

3.4. CUTTER BARS : The cutting and collection head shall consist of three (3) cutter bars, each having a 3” reciprocating stroke. The horizontal cutter shall be mounted across the lower front end of the pickup/loading conveyor frame. The two (2) vertical cutters shall be attached to bolt-on style extension flares. Integral, one-piece and permanently welded on extensions flares are not acceptable. The vertical cutter bar extensions shall be painted in a color that contrasts with the rest of the machine for visibility.

3.5. DIMENSIONS : The cutter bars shall measure

Horizontal:10’ 0”Vertical:5’ 0”

3.6. DRIVE SYSTEM : Each of the cutter bars shall be powered by a high torque hydraulic motor and ⅝” diameter pitman rods with ⅝” rod end bearings. The loading conveyor shall be driven by a high torque hydraulic motor by means of positive chain drive couplings. Splined couplings are not acceptable. Hydraulic motors shall be of sufficient capacity to continuously move a fully loaded conveyor belt. The hydraulic circuit for the cutter bars shall be separate from the hydraulic circuit for the pick up conveyor.

3.7. IMPACT PROTECTION SYSTEM : The cutter head shall incorporate a double impact protection system to minimize damage in the event of collision with an underwater obstruction. This system shall consist of:

A total of four (4) heavy duty precompressed shock rods with springs located behind the horizontal cutter bar

Pivoting gravity spring suspension to pivot entire pick up conveyor upon impact

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Dual impact protection MUST be supplied; substitutions are not allowed.

3.8. DRIVE SHAFT : Cutter head conveyor drive shall be a bearing mounted shaft with a minimum of fourteen (14) drive sprockets. Conveyor shall be driven by ½” steel x thirteen (13) toothed machined and shouldered sprockets welded to the shaft. Ball type sprockets and forged steel sprockets are not acceptable.

3.9. IDLER SHAFT : Cutter head conveyor idler roller shall be a bearing mounted smooth tube shaft.

3.10. TENSIONING DEVICES : Proper belt tension on the pick up conveyor shall be maintained via two (2) external telescoping threaded tensioning devices at the idler shaft.

3.11. CONVEYOR MESH : Cutter head conveyor mesh shall be standard duty 1" x 1" galvanized flat wire belting.

4. #2 & #3 CONVEYORS: STORAGE HOLD CONTAINER

4.1. CONSTRUCTION : The storage hold shall consist of two (2) separate structural steel frames with flat expanded metal sidewalls.

4.2. #2 CONVEYOR DRIVE SYSTEM : The #2 storage hold conveyor shall be driven by a high torque hydraulic motor by means of positive chain drive coupling. Splined couplings are not acceptable. Hydraulic motors shall be of sufficient capacity to move a fully loaded conveyor belt. The #2 conveyor belt speed shall be 20’ per minute.

4.3. #3 CONVEYOR DRIVE SYSTEM : The #3 storage hold conveyor shall be driven by two (2) high torque hydraulic motors by means of positive chain drive coupling. Splined couplings are not acceptable. Hydraulic motors shall be of sufficient capacity to move a fully loaded conveyor belt. The #3 conveyor belt speed shall be 27’ per minute.

4.4. STORAGE CAPACITY : The storage hold container shall be self-draining and have a minimum capacity of 1,000 cubic feet or 16,000 pounds, whichever is reached first.

4.5. FUNCTION : In the operating mode the storage container shall be kept in a horizontal position. To unload, the discharge end must be hydraulically raised to an inclined position.

4.6. DISCHARGE EXTENSION : The discharge conveyor shall extend a minimum of 7’ 0” beyond the barge stern and be capable of raising a minimum of 5’ to unload. Raising and lowering the #3 conveyor shall be accomplished by means of two (2) single action hydraulic cylinders. Optimum unloading time shall be ninety (90) seconds.

4.7. DRIVE SHAFTS : Storage conveyor drives shall be bearing mounted shafts with a minimum of fourteen (14) drive sprockets. Conveyors shall be driven by ½” steel x thirteen (13) toothed machined and shouldered sprockets welded to the shaft. Ball type sprockets and forged steel sprockets are unacceptable.

4.8. IDLER SHAFTS : Storage conveyor idler rollers shall be bearing mounted smooth tube shafts.

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4.9. TENSIONING DEVICES : Proper belt tension on the storage hold conveyors shall be maintained via external threaded tensioning devices on the bearing plates. The #2 conveyor tensioners shall be mounted at the idler shaft; #3 conveyor tensioners shall be mounted at the drive shaft.

4.10 CONVEYOR OR MESH: Storage hold conveyor mesh shall be standard duty 1" x 1" galvanized flat wire belting.

4.11 WEIGHT GAUGE A visible gauge shall be placed on the side of the harvester that can be used to estimate the weight of the vegetation prior to unloading.

5. POWER PLANT AND HYDRAULICS

5.1. LOCATION : For ease of servicing and protection from splashing water, the engine, hydraulic pump, hydraulic tank and battery shall be platform mounted on rubber vibration isolators above the storage container and as far back from the operator as possible. Deck mounted engines and/or power packs are not acceptable.

5.2. ENGINE : The harvester shall be powered by an air cooled Hatz Diesel engine, model 4L41C with “Silent Pack” sound dampening encapsulation. Engine shall have a minimum rating of 62 horsepower @ 2600 RPM. Engine shall have a 12 volt electrical system and automatic low oil pressure shutdown.

5.3. FUEL TANKS : 50 U.S. Gallon fixed fuel tank shall be provided labeled for diesel fuel, and shall include a filler/breather cap.

5.4. HYDRAULIC PUMP SYSTEM : The engine shall directly drive a tandem pump to power each of the paddle wheels, and a gear pump to power the balance of the hydraulic systems.

Total flow capacity/gallons per minute (GPM) shall be sufficient to operate both paddle wheels as well as all cutting and loading conveyor motors simultaneously. The system should allow for all operating functions at infinitely variable speeds from zero to factory set maximum speeds.

5.5. HYDRAULIC RESERVOIR : The hydraulic reservoir shall have a minimum capacity of 40 U.S. gallons and shall include a filler/breather cap, water collection drain pepcock, magnetic particle collector, suction strainer, 10 micron return filter, visual oil level & temperature gauge and electronic low level sensing unit with alarm. The hydraulic tank shall be mounted on an elevated platform next to the engine.

5.6. HYDRAULIC OIL : Hydraulic oil shall be environmentally safe Citgo brand Aquamarine 46.

5.7. HYDRAULIC LINES : All hydraulic lines shall be made of heavy duty stainless steel tubing, except where flexibility is required. Stainless tubing shall be uniformly shaped and bent, and shall be neatly mounted to the machine using tube clamp brackets.

Where flexibility is required, high quality heavy duty double braided rubber hose shall be used. The following minimum PSI hose ratings shall be required:

¼” Hose – 5000 PSI minimum½” Hose – 3500 PSI minimum

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¾” Hose – 2250 PSI minimum1” Hose – 2000 PSI minimum

Rubber hose shall be guarded with nylon sheathing at all potential friction points.

5.8. HYDRAULIC FITTINGS : Only high quality hydraulic fittings shall be used; all fittings shall be properly matched in size and rating to the hydraulic tubing and/or hose. Pot metal, inferior metallic fittings and/or plastic fittings are not acceptable.

5.9. HYDRAULIC OPERATION : The paddle wheels shall have separate speed control, both forward and reverse, by manual control levers. All other hydraulic functions shall be independently activated by electric toggle switches and/or foot pedals.

6. PROPULSION SYSTEM

6.1. PADDLE WHEELS : Two bi-directional paddle wheels shall be center mounted on the port and starboard sides of the barge. Paddle wheels shall be easily attached and removed via eight (8) bolts for over-the-road transport. Paddle wheels shall each be powered by a heavy duty planetary torque hub driven by low speed high torque hydraulic motors. Each paddle wheel motor shall be protected by a cross over relief valve. The use of tapered shafts and/or direct drive paddle wheel systems is unacceptable.

6.2. DIMENSIONS : Each paddle wheel shall measure:

Diameter:68”Width: 32”

6.3. PADDLE WHEEL GUARDS : Each paddle wheel shall be guarded to prevent operator or passenger injury. Guards shall cover the front, back, top and inside of the paddle wheels. Guards shall be easily removable and/or retractable for highway transport.

6.4. FINISH : Paddle wheels and entire paddle wheel guard system shall be painted in a color that contrasts with the rest of the machine for safety.

7. CONTROL BRIDGE

7.1. LOCATION : The operator control area shall be a raised bridge, permanently mounted at the forward end of the harvester over the storage hold container. Bridge shall be surrounded by safety railings with access to it from the barge deck by means of non-skid ladder steps from both the starboard and port sides.

7.2. CONTROL CONSOLE : Manual control levers and foot pedals shall be mounted on the bridge within easy reach of an operator in the seated position. All hydraulic lines to the valve bank must be shielded. Operator console shall include at least one (1) lockable storage cabinet.

7.3. CONTROL PANEL : The control panel shall be mounted to the right of the operator seat within easy reach of an operator in the seated position; maximum distance from the seat shall be 12”. Blocking the operator’s forward line of sight with the control panel is not allowed.

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7.4. INSTRUMENTATION : Instrumentation shall include an ignition switch, engine accelerator, tachometer, hour meter and ammeter. Gauges, controls and electrical circuitry must be of weather resistant design. A hydraulic pressure gauge shall be provided.

7.5. OPERATOR SEAT : The operator seat shall be an ergonomic type made of foam rubber, padded and covered with weather-proof heavy duty vinyl.

7.6. OPERATOR CANOPY : A collapsible bimini sun/rain canopy shall be provided with the harvester. Canopy shall be large enough to cover the operator platform.

8. FINISH

8.1. PREPARATION & FINISH : All weldments and fabricated parts shall be thoroughly cleaned to remove all grease, oil and foreign material. Weld spatter, slag, flux, rust and corrosion shall be completely removed. All carbon steel surfaces shall be sandblasted to a white substrate, then under coated and over coated with a minimum of 14 mils of high quality industrial paint. Below the waterline the barge shall be coated with marine epoxy paint. Above the waterline the barge shall be coated with urethane paint. All conveyor and superstructure components shall also be finished with urethane paint. No exceptions allowed.

8.2. COLOR : Silver paint on frame components shall be provided.

8.3. STAINLESS STEEL FINISH : Stainless steel barge shall be cured with pickling paste for a minimum of twenty four (24) hours, then power buffed with rubbing compound to a high shine finish.

8.4. FASTENERS : All fasteners shall be stainless steel grade 18/8 throughout the machine.

8.5. PARTS AVAILABILITY : Parts and fittings for the vessel and any of its accessories, (ie: engine; hydraulic lines, pumps & valves; hydraulic motors, hoses & fittings; hardware; electrical components; etc.), shall be of a manufacture, design and size that is readily available to the Buyer. Odd sized, close-out or hard-to-find components are absolutely unacceptable.

9. MISCELLANEOUS

9.1. SPARE PARTS KIT : A spare parts kit shall be provided with the vessel at no additional cost, and shall include at least the following: hydraulic oil filter/s, engine oil filter/s, cutter blades, vertical and horizontal shear fingers, rod end bearings, miscellaneous fasteners, hold down clip/s and shim/s, hydraulic pressure gauge, hydraulic motor seal kit, and any other parts deemed appropriate by the manufacturer.

9.2. TOOL KIT : A complete set of required tools for servicing the equipment shall be supplied, along with a tool box, grease gun and fire extinguisher.

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Dimensions

Operating Length 45'6"Operating Width 17'3"Operating Height 10'6"Shipping Length 45'6"Shipping Length 11'1"Shipping Width 9'2"Shipping Height 14,500 lbOverall Weight 28'0"

Flotation

Barge Length 11'1"Barge Width 26"Barge Height 4 Airtight/watertight compartmentsCompartment 11"Draft, Empty 21"Draft, Fully Loaded Air Cooled Diesel

Power SourceEngine Rating Minimum 50 HPEngine Protection Low oil & high temperature shut downFuel Tank, Quantity and Description Fixed 50 Gallon Tank

HydraulicsHydraulic System Variable displacement & fixed gear pumpsHydraulic Oil Marine safe Citgo 48Hydraulic Reservoir Capacity 40 gallons w/ temperature & level gaugeHydraulic System Protection Relief valves, low oil & clogged filter sensors

Control Bridge

Location Over storage hold container

Instrumentation & ControlsLevers, foot pedals, gauges, warning lights &

alarmsOperator Amenities Padded vinyl seat, bimini sun/rain canopyOperator Protection All hydraulic lines/valves enclosed & shielded

Harvesting Head

Harvesting Width 10'Harvesting Depth 0 to 5'6" deepCutter Knives Reciprocating 3" stroke, chrome plated

Impact Protection, DualPre-compressed shocks & pivoting spring

suspensionConveyor Belting 1" x 1" standard duty galvanized mesh

Storage Container

Length x Width 34'9" x 8'3"Capacity, Volume/Weight 1050 cubic feet/ 16,800 lbConveyor Belting 1" x 1" standard duty galvanized meshDischarge Height, from water service Up to 5'8"Discharge Distance, from barge stern 7'0"

Propulsion Propulsion System & Location Twin paddle wheels, side mounted mid shipOperation & RPM Speed Independent, forward & reverse, 0 to 50 RPM

Fabrication Hull Material Stainless steel 304LFrame Material Carbon steel

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Fasteners Stainless steel 18/8 throughout

FinishPreparation Sandblasted to white substratePaint Type, above the waterline High quality marine epoxyPaint Type, below the waterline High quality urethaneColor, Manufacturer's Standard Silver

ProductionVessel Speed, Transiting 3 MPHVessel Speed, working 1 MPH maximumProduction Rate, (estimated) .610 acres per hour

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DEVIATIONSCompany Name___________________________________________________________________

Bidder must use the spaces below to itemize any and all deviations taken from the detailed equipment specifications as stated herein:

ITEM NUMBER DEVIATION EXPLANATION

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Check box at left if bidder has taken NO deviations from the specifications.

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STANDARD TERMS AND CONDITIONS

(Request For Bids/Proposals/Contracts)

1.0 APPLICABILITY: The terms and conditions set forth in this document apply to Requests for Proposals (RFP), Bids and all other transactions whereby the County of Dane acquires goods or services, or both.

1.1 ENTIRE AGREEMENT: These Standard Terms and Conditions shall apply to any contract, including any purchase order, awarded as a result of this request. Special requirements of a resulting contract may also apply. Said written contract with referenced parts and attachments shall constitute the entire agreement, and no other terms and conditions in any document, acceptance, or acknowledgment shall be effective or binding unless expressly agreed to in writing by the County.

1.2 DEFINITIONS: As used herein, “vendor” includes a provider of goods or services, or both, who is responding to an RFP or a bid, and “bid” includes a response to either an RFP or a bid.

2.0 SPECIFICATIONS: The specifications in this request are the minimum acceptable. When specific manufacturer and model numbers are used, they are to establish a design, type of construction, quality, functional capability or performance level, or any combination thereof, desired. When alternates are proposed, they must be identified by manufacturer, stock number, and such other information necessary to establish equivalency. Dane County shall be the sole judge of equivalency. Vendors are cautioned to avoid proposing alternates to the specifications which may result in rejection of their bid.

3.0 DEVIATIONS AND EXCEPTIONS: Deviations and exceptions from terms, conditions, or specifications shall be described fully, on the vendor’s letterhead, signed, and attached to the bid. In the absence of such statement, the bid shall be accepted as in strict compliance with all terms, conditions, and specifications and vendor shall be held liable for injury resulting from any deviation.

4.0 QUALITY: Unless otherwise indicated in the request, all material shall be first quality. No pre-owned, obsolete, discontinued or defective materials may be used.

5.0 QUANTITIES: The quantities shown on this request are based on estimated needs. The County reserves the right to increase or decrease quantities to meet actual needs.

6.0 DELIVERY: Deliveries shall be FOB destination freight prepaid and included unless otherwise specified. County will reject shipments sent C.O.D. or freight collect.

7.0 PRICING: Unit prices shown on the bid shall be the price per unit of sale, e.g., gal., cs., doz., ea., etc., as stated on the request or contract. For any given item, the quantity multiplied by the unit price shall establish the extended price, the unit price shall govern in the bid evaluation and contract administration.

7.1 Prices established in continuing agreements and term contracts may be lowered due to market conditions, but prices shall not be subject to increase for the term specified in the award. Vendor shall submit proposed increases to the

contracting department thirty (30) calendar days before the proposed effective date of the price increase. Proposed increases shall be limited to fully documented cost increases to the vendor that are demonstrated to be industry wide. Price increases may not be granted unless they are expressed in bid documents and contracts or agreements.

7.2 Submission of a bid constitutes bidder’s certification that no financial or personal relationship exists between the bidder and any county official or employee except as specially set forth in writing attached to and made a part of the bid. The successful bidder shall disclose any such relationship which develops during the term of the contract.

8.0 ACCEPTANCE-REJECTION: Dane County reserves the right to accept or reject any or all bids, to waive any technicality in any bid submitted and to accept any part of a bid as deemed to be in the best interests of the County. Submission of a proposal or a bid constitutes the making of an offer to contract and gives the County an option valid for 60 days after the date of submission to the County.

8.1 Bids MUST be dated and time stamped by the Dane County Purchasing Division Office on or before the date and time that the bid is due. Bids deposited or time stamped in another office will be rejected. Actual receipt in the office of the purchasing division is necessary; timely deposit in the mail system is not sufficient. THERE WILL BE NO EXCEPTIONS TO THIS POLICY.

9.0 METHOD OF AWARD: Award shall be made to the lowest responsible, responsive vendor conforming to specifications, terms, and conditions, or to the most advantageous bid submitted to the County on a quality versus price basis. Among other things, quantities, time of delivery, purpose for which required, competency of vendor, the ability to render satisfactory service and past performance will be considered in determining responsibility.

10.0 ORDERING/ACCEPTANCE: Written notice of award to a vendor in the form of a purchase order or other document, mailed or delivered to the address shown on the bid will be considered sufficient notice of acceptance of bid. A formal contract containing all provisions of the contract signed by both parties shall be used when required by the Dane County Purchasing Division.

11.0 PAYMENT TERMS AND INVOICING: Unless otherwise agreed, Dane County will pay properly submitted vendor invoices within thirty (30) days of receipt of goods or services, or combination of both. Payment will not be made until goods or services are delivered, installed (if required), and accepted as specified. Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order.

11.1 NO WAIVER OF DEFAULT: In no event shall the making of any payment or acceptance of any service or product required by this Agreement constitute or be construed as a waiver by County of any breach of the covenants of the Agreement or a waiver of any default of the successful vendor, and the making of any such payment or acceptance of any such service or product by County while any such default or breach shall exist shall in no way impair or prejudice the right of County with respect to recovery of damages or other remedy as a result of such breach or default.

Bid #106012 -1-

12.0 TAXES: The County and its departments are exempt from payment of all federal tax and Wisconsin state and local taxes on its purchases except Wisconsin excise taxes as described below. The State of Wisconsin Department of Revenue has issued tax exempt number ES41279 to Dane County.

12.1 The County is required to pay the Wisconsin excise or occupation tax on its purchase of beer, liquor, wine, cigarettes, tobacco products, motor vehicle fuel and general aviation fuel. The County is exempt from Wisconsin sales or use tax on these purchases. The County may be subject to other states’ taxes on its purchases in that state depending on the laws of that state. Vendors performing construction activities are required to pay state use tax on the cost of materials.

13.0 GUARANTEED DELIVERY: Failure of the vendor to adhere to delivery schedules as specified or to promptly replace rejected materials shall render the vendor liable for all costs in excess of the contract price when alternate procurement is necessary. Excess costs shall include administrative costs.

14.0 APPLICABLE LAW AND VENUE: This contract shall be governed under the laws of the State of Wisconsin, and venue for any legal action between the parties shall be in Dane County Circuit Court. The vendor shall at all times comply with and observe all federal and state laws, local laws, ordinances, and regulations which are in effect during the period of this contract and which in any manner affect the work or its conduct.

15.0 ASSIGNMENT: No right or duty in whole or in part of the vendor under this contract may be assigned or delegated without the prior written consent of Dane County.

16.0 NONDISCRIMINATION/AFFIRMATIVE ACTION: During the term of this Agreement the vendor agrees, in accordance with sec. 111.321, Wis. Stats., and Chapter 19 of the Dane County Code of Ordinances, not to discriminate against any person, whether an applicant or recipient of services, an employee or applicant for employment, on the basis of age, race, ethnicity, religion, color, gender, disability, marital status, sexual orientation, national origin, cultural differences, ancestry, physical appearance, arrest record or conviction record, military participation or membership in the national guard, state defense force or any other reserve component of the military forces of the United States, or political beliefs. The vendor shall provide a harassment-free work environment. These provisions shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff, termination, training, including apprenticeships, rates of pay or other forms of compensation.

16.1 Vendors who have twenty (20) or more employees and a contract of twenty thousand dollars ($20,000) or more must submit a written affirmative action plan to the County’s Contract Compliance Officer within fifteen (15) working days of the effective date of the contract. The County may elect to accept a copy of the current affirmative action plan filed with and approved by a federal, state or local government unit.

16.2 The vendor agrees to post in conspicuous places, available for employees and applicants for employment, notices setting forth the provisions of this Agreement as they relate to affirmative action and nondiscrimination.

16.3 Failure to comply with these Terms and Conditions may result in the vendor being debarred, termination of the contract and/or withholding of payment.

16.4 The vendor agrees to furnish all information and reports required by Dane County’s Contract Compliance Officer as the same relate to affirmative action and nondiscrimination, which may include any books, records, or accounts deemed appropriate to determine compliance with Chapter 19, D.C. Ords., and the provisions of this Agreement.

16.5 Americans with Disabilities Act: The vendor agrees to the requirements of the ADA, providing for physical and programmatic access to service delivery and treatment in all programs and activities.

17.0 PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT: The vendor guarantees goods sold to the County were manufactured or produced in accordance with applicable federal labor laws, and that the sale or use of the articles described herein do not infringe any patent, copyright or trademark. The vendor covenants that it will, at its own expense, defend every suit which shall be brought against the County (provided that such vendor is promptly notified of such suit, and all papers therein are delivered to it) for any alleged infringement of any patent, copyright or trademark by reason of the sale or use of such articles, and agrees that it will pay all costs, damages, and profits recoverable in any such suit.

18.0 SAFETY REQUIREMENTS: All materials, equipment, and supplies provided to the County must fully comply with all safety requirements as set forth by the Wisconsin Department of Commerce and all applicable OSHA Standards.

18.1 MATERIAL SAFETY DATA SHEET: If any item(s) on an order(s) resulting from this award(s) is a hazardous chemical, as defined under 29 CFR 1910.1200, provide one (1) copy of the Material Safety Data Sheet for each item with the shipped container(s) and one (1) copy with the invoice(s).

19.0 WARRANTY: Unless specifically expressed otherwise in writing, goods and equipment purchased as a result of this request shall be warranted against defects by the vendor for one (1) year from date of receipt. An equipment manufacturer’s standard warranty shall apply as a minimum and must be honored by the vendor. The time limitation in this paragraph does not apply to the warranty provided in paragraph 27.0.

20.0 INSURANCE RESPONSIBILITY: The successful vendor shall:

20.1 Maintain worker’s compensation coverage as required by Wisconsin Statutes, for all employees engaged in the work. The successful vendor shall furnish evidence of adequate worker’s compensation insurance.

20.2 Indemnify, hold harmless and defend County, its boards, commissions, agencies, officers, employees and representatives against any and all liability, loss (including, but not limited to, property damage, bodily injury and loss of life), damages, costs or expenses which County, its officers, employees, agencies, boards, commissions and representatives may sustain, incur or be required to pay by reason of the successful vendor furnishing the services or

Bid #106012 -2-

goods required to be provided under the contract with the County, provided, however, that the provisions of this paragraph shall not apply to liabilities, losses, charges, costs, or expenses caused by or resulting from the acts or omissions of County, its agencies, boards, commissions, officers, employees or representatives. The obligations of the successful vendor under this paragraph shall survive the expiration or termination of any contract resulting from the successful vendor’s bid.

20.3 At all times during the term of this Agreement, keep in full force and effect comprehensive general liability and auto liability insurance policies (as well as professional malpractice or errors and omissions coverage, if the services being provided are professional services) issued by a company or companies authorized to do business in the State of Wisconsin and licensed by the Wisconsin Insurance Department, with liability coverage provided for therein in the amount of at least $1,000,000 CSL (Combined Single Limits). Coverage afforded shall apply as primary. County shall be given ten (10) days advance notice of cancellation or non-renewal. Upon execution of this Agreement, the successful vendor shall furnish County with a certificate of insurance listing County as an additional insured and, upon request, certified copies of the required insurance policies. If the successful vendor’s insurance is underwritten on a Claims-Made basis, the Retroactive Date shall be prior to or coincide with the date of this Agreement, the Certificate of Insurance shall state that coverage is Claims-Made and indicate the Retroactive Date, the successful vendor shall maintain coverage for the duration of this Agreement and for two years following the completion of this Agreement. The successful vendor shall furnish County, annually on the policy renewal date, a Certificate of Insurance as evidence of coverage. It is further agreed that the successful vendor shall furnish the County with a 30-day notice of aggregate erosion, in advance of the Retroactive Date, cancellation, or renewal. It is also agreed that on Claims-Made policies, either the successful vendor or County may invoke the tail option on behalf of the other party and that the Extended Reporting Period premium shall be paid by the successful vendor. In the event any action, suit or other proceeding is brought against County upon any matter herein indemnified against, County shall give reasonable notice thereof to the successful vendor and shall cooperate with the successful vendor’s attorneys in the defense of the action, suit or other proceeding.

20.4 The County reserves the right to require higher or lower insurance limits where County deems necessary.

20.5 In case of any sublet of work under this Agreement, the successful vendor shall furnish evidence that each and every subvendor has in force and effect insurance policies providing coverage identical to that required of the successful vendor.

21.0 CANCELLATION: County reserves the right to terminate any Agreement due to non-appropriation of funds or failure of performance by the vendor. This paragraph shall not relieve County of its responsibility to pay for services or goods provided or furnished to County prior to the effective date of termination.

22.0 PUBLIC RECORDS ACCESS: It is the intention of the County to maintain an open and public process in the solicitation, submission, review, and approval of procurement activities. Bid openings are public unless otherwise specified.

Records are not available for public inspection prior to issuance of the notice of intent to award or the award of the contract. Bid results may be obtained by visiting the Dane County Purchasing Office Monday – Friday, between 8:00 a.m. and 4:00 p.m. Prior appointment is advisable.

22.1 PROPRIETARY INFORMATION: If the vendor asserts any of its books and records of its business practices and other matters collectively constitute a trade secret as that term is defined in s. 134.90(1)(c), Wis. Stats., County will not release such records to the public without first notifying the vendor of the request for the records and affording the vendor an opportunity to challenge in a court of competent jurisdiction the requester’s right to access such records. The entire burden of maintaining and defending the trade secret designation shall be upon the vendor. The vendor acknowledges and agrees that if the vendor shall fail, in a timely manner, to initiate legal action to defend the trade secret designation or be unsuccessful in its defense of that designation, County shall be obligated to and will release the records.

22.2 Data contained in a bid, all documentation provided therein, and innovations developed as a result of the contracted commodities or services cannot be copyrighted or patented. All data, documentation, and innovations shall be the property of the County.

22.3 Any material submitted by the vendor in response to this request that the vendor considers confidential and proprietary information and which vendor believes qualifies as a trade secret, as provided in section 19.36(5), Wis. Stats., must be identified on a designation of Confidential and Proprietary Information form. In any event, bid prices will not be held confidential after award of contract.

23.0 RECYCLED MATERIALS: Dane County is required to purchase products incorporating recycled materials whenever technically and economically feasible. Vendors are encouraged to bid products with recycled content which meet specifications.

24.0 PROMOTIONAL ADVERTISING: Reference to or use of Dane County, any of its departments or sub-units, or any county official or employee for commercial promotion is prohibited.

25.0 ANTITRUST ASSIGNMENT: The vendor and the County of Dane recognize that in actual economic practice, overcharges resulting from antitrust violation are in fact usually borne by the County of Dane (purchaser). Therefore, the successful vendor hereby assigns to the County of Dane any and all claims for such overcharges as to goods, materials or services purchased in connection with this contract.

26.0 RECORDKEEPING AND RECORD RETENTION-PUBLIC WORKS CONTRACTS: The successful bidder on a public works contract shall comply with the State of Wisconsin prevailing wage scale and shall establish and maintain adequate payroll records for all labor utilized as well as records for expenditures relating to all subcontracts, materialmen and suppliers. All records must be kept in accordance with generally accepted accounting procedures. The County shall have the right to audit, review, examine, copy, and transcribe any such records or documents. The vendor will retain all documents applicable to the contract for a period of not less than three (3) years after final payment is made.

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26.1 RECORDKEEPING AND RECORD RETENTION-COST REIMBURSEMENT CONTRACTS: Where payment to the vendor is based on the vendor’s costs, vendor shall establish and maintain adequate records of all expenditures incurred under the contract. All records must be kept in accordance with generally accepted accounting procedures. The County contracting agency shall have the right to audit, review, examine, copy, and transcribe any pertinent records or documents relating to any contract resulting from this bid/proposal held by the vendor. The vendor will retain all documents applicable to the contract for a period of not less than three (3) years after final payment is made.

27.0 YEAR 2000 COMPLIANT: Vendor warrants that: a) all goods, services and licenses sold otherwise provided pursuant to this procurement have been tested for and are fully year 2000 compliant, which means they are capable of correctly and consistently handling all date-based functions before, during and after the year 2000; b) the date change from 1999 to 2000, or any other date changes, will not prevent such goods, services or licenses from operating in a merchantable manner, for the purposes intended and in accordance with all applicable plans and specifications and without interruption before, during and after the year 2000; and c) vendor’s internal systems, and those of vendor’s vendors, are year 2000 compliant, such that vendor will be able to deliver such goods, services and licenses as required by this procurement.

28.0 LIVING WAGE REQUIREMENT: The vendor shall, where appropriate, comply with the County’s Living Wage requirements as set forth in section 25.015, Dane County Ordinances.

28.01 In the event its payroll records contain any false, misleading or fraudulent information, or if the vendor fails to comply with the provisions of s. 25.015, D.C. Ords., the County may withhold payments on the contract, terminate, cancel or suspend the contract in whole or in part, or, after a due process hearing, deny the vendor the right to participate in bidding on future County contracts for a period of one (1) year after the first violation is found and for a period of three (3) years after a second violation is found.

28.02 Bidders are exempt from the above requirements if: The maximum value of services to be provided is less than

$5,000; The bid involves only the sale of goods to the County; The bid is for professional services; The bid is for a public works contract where wages are

regulated under s. 62.293, Wis. Stats.; The bidder is a school district, a municipality, or other unit

of government; The service to be provided is residential services at an

established per bed rate; The bidder’s employees are persons with disabilities

working in employment programs and the successful bidder holds a current sub-minimum wage certificate issued by the U.S. Department of Labor or where such a certificate could be issued but for the fact that the employer is paying a wage higher than the minimum wage;

The bidder is an individual providing services to a family member; or

The bidder’s employees are student interns.

Bid #106012 -4-

Bid #106012 -1-

JONES ACT ATTACHEMENT

U.S. Department of Homeland Security Washington, DC 20229

U.S. Customs and Border Protection

VES-3/3-23/7-1RR:IT:EC 11644 GOB

April 21, 2005

RE: Coastwise Transportation; Fisheries; 46 U.S.C. App. 883, 316(a); 46 U.S.C. 12101(a)(1); Aquatic Plant Harvesters; Marine Trash Skimmers; Barges

STATUTORY AND REGULATORY BACKGROUND

Generally, the coastwise laws prohibit the transportation of passengers or merchandise between points in the United States embraced within the coastwise laws in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. A vessel that is built in, documented under the laws of, and owned by citizens of the United States, and which obtains a coastwise endorsement from the U.S. Coast Guard, is referred to as “coastwise qualified”.

The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. In this letter, we will use the term “territorial waters” to include internal waters and navigable waters of the U.S.

Title 46, United States Code Appendix, §883 (46 U.S.C. App. 883), the coastwise merchandise statute often called the “Jones Act”, provides in part that no merchandise shall be transported between points in the United States embraced within coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel built in, documented under the laws of, and owned by citizens of the United States. Section 4.80b(a), CBP Regulations [19 CFR 4.80b(a)] provides, in pertinent part:

A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise is laden at a point embraced within the coastwise laws (“coastwise point”), is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise.

Title 19, United States Code, §1401(c) [19 U.S.C. 1401(c)] defines “merchandise”, in pertinent part, as follows: “goods, wares, and chattels of every description…” Title 46, United States Code App., section 883 provides that “the term ‘merchandise’ includes valueless material”.

Title 46, United States Code, §1201(a)(1) [46 U.S.C. 12101(a)(1)] provides:

(a) In this chapter - (1) “fisheries” includes processing, storing, transporting (except in foreign commerce), planting,

cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or in the exclusive economic zone.

U.S. Customs & Border Protection Agency; Federal Regulations impacting the use of foreign-built Aquatic Plant Harvesters, Trash Skimmers & Transport Barges in the United States Page 1 of 4

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1. Are foreign-built aquatic plant harvesters with capacities of five net tons or greater allowed to harvest aquatic plants in waters of the United States?

CBP has long held that aquatic plant harvesters are vessels engaged in the fisheries within the meaning of 46 U.S.C. 12101(a)(1). If the vessel is foreign-built, it is not eligible for a fisheries endorsement. Therefore, the vessel may not engage in the fisheries (i.e., aquatic plant harvesting) in territorial waters of the U.S.

2. Are foreign-built aquatic plant harvesters and/or transport barges with capacities of five net tons or greater allowed to transport aquatic plant loads from their point of harvest within waters of the United States to a U.S. shore for disposal?

The transportation of aquatic plant loads (i.e., merchandise) from a point within U.S. territorial waters to a U.S. shore point constitutes the coastwise transportation of merchandise which may only be accomplished by a “coastwise qualified” vessel. A foreign-built vessel of five net tons or greater is not eligible for a coastwise endorsement and is not “coastwise qualified”. Therefore, such transportation by the foreign-built vessels would constitute a violation of 46

U.S.C. App. 883.

3. Are foreign-built aquatic plant harvesters with capacities of less than five net tons allowed to harvest aquatic plants in waters of the United States?

In HQ 1116151, we stated: “With regard to vessels of less than five net tons, Customs [now CBP] has long held that such vessels, if owned by United States citizens or by resident aliens, may engage in the fisheries even if foreign-built [see e.g., Treasury Division (T.D.) 56382 (6)].” Please note that the vessel itself must be admeasured2 at less than five net tons3. If the foreign-built aquatic plant harvester is less than five net tons and is owned by a U.S. citizen or resident alien, it may engage in the harvesting of aquatic plants in U.S. territorial waters.

The letters “HQ” followed by a six digit number (i.e. HQ 111615) designate existing CBP case rulings on similar matters. 2 The definition of “admeasure” (as it applies here) means the certified net capacity of an individual vessel. The purpose of admeasuring a vessel is to ascertain the true net capacity of that vessel, thereby qualifying the vessel to be numbered pursuant to 16 U.S.C. 1802(27)(B) and thus receive the appropriate trade endorsement, in this case a “fisheries endorsement”. 3

Each (individual) foreign-built vessel with a capacity of less than five net tons, operating in the U.S., must have documentation known as a “fisheries endorsement” in order to legally engage in the “fisheries”, as defined in 46 U.S.C. 12101(a)(1). Title 46, United States Code, section 12122(b)(4) provides that a vessel and its equipment are subject to seizure and forfeiture to the U.S. Government when a vessel is employed in a trade without an appropriate trade endorsement.

U.S. Customs & Border Protection Agency; Federal Regulations impacting the use of foreign-built Aquatic Plant Harvesters, Trash Skimmers & Transport Barges in the United States Page 2 of 4

Bid #106012 -2-

4. Are foreign-built aquatic plant harvesters and/or transport barges with capacities of less than five net tons allowed to transport aquatic plant loads from their point of harvest within waters of the United States to a U.S. shore for disposal?

In our response to Question Three, we stated that a foreign-built aquatic plant harvester of less than five net tons which is owned by a U.S. citizen or resident alien may engage in the harvesting of aquatic plants in U.S. territorial waters. The transportation (except in foreign commerce) of the aquatic plants subsequent to their harvesting is included within the scope of the fisheries capability of the vessel. See the definition of “fisheries” in 46 U.S.C. 12101(a)(1), above. Therefore, a foreign-built aquatic plant harvester of less than five net tons which is owned by a U.S. citizen or resident alien may transport the aquatic plants to a U.S. shore point after harvesting them in U.S. waters4. However, the transportation of aquatic plants by a foreign-built transport barge, which does not harvest the aquatic plants, from U.S. territorial waters to a U.S. shore point would violate 46 U.S.C. App. 883.

5. Are foreign-built marine trash skimmers with capacities of five net tons or greater allowed to harvest floating debris in waters of the United States?

Pursuant to 46 U.S.C. App. 883, foreign-built trash skimmers (regardless of size) may not collect debris (considered to be “merchandise” for purposes of this statute as discussed above) from a point in U.S. territorial waters and transport such debris to a second U.S. point.

6. Are foreign-built marine trash skimmers and/or transport barges with capacities of five net tons or greater allowed to transport floating debris from their point of harvest within waters of the United States to a U.S. shore for disposal?

Our response is essentially the same as our response to Question Five. Pursuant to 46 U.S.C. App. 883, foreign-built trash skimmers and/or transport barges (regardless of size) may not collect debris from a point in U.S. territorial waters and transport such debris to a second U.S. point.

7. Are foreign-built marine trash skimmers with capacities of less than five net tons allowed to harvest floating debris in waters of the United States?

We assume that the harvest of floating debris is essentially the same as the collection of floating debris. Our response is the same as our response to Question Five. Pursuant to 46 U.S.C. App. 883, foreign-built trash skimmers (regardless of size) may not collect debris from a point in U.S. territorial waters and transport such debris to a second U.S. point.

8. Are foreign-built marine trash skimmers and/or transport barges with capacities of less than five net tons allowed to transport floating debris from their point of harvest within waters of the United States to a U.S. shore for disposal?

As in the previous question, we assume that the harvest of floating debris is essentially the same as the collection of floating debris. Our response is the same as our response to previous questions. Pursuant to 46 U.S.C. App. 883, foreign-built trash skimmers and/or transport barges (regardless of size) may not collect debris from a point in U.S. territorial waters and transport such debris to a second U.S. point.

Each (individual) foreign-built vessel with a capacity of less than five net tons, operating in the U.S., must have a “fisheries endorsement” pursuant to 16 U.S.C. 1802(27)(B), in order to legally engage in the “fisheries”, as defined in 46 U.S.C. 12101(a)(1). Title 46, United States Code, section 12122(b)(4) provides that a vessel and its equipment are subject to seizure and forfeiture to the U.S. Government when a vessel is employed in a trade without an appropriate trade endorsement.

9. Are any foreign-built aquatic plant harvesters or marine trash skimmers operating in waters of Bid #106012 -3-

the United States allowed to transfer aquatic plant and/or floating debris loads from the harvesting vessel to another vessel - such as a U.S. manufactured transport barge - for the purpose of transporting said loads to a U.S. shore for disposal?

46 U.S.C. App. 883 essentially provides in part that a “non-coastwise qualified” vessel (i.e., a foreign vessel in questions above) may not transport merchandise from one U.S. point to a second U.S. point. If a foreign vessel picks up floating debris at one point in U.S. territorial waters and transfers such debris to a vessel at a second point in U.S. waters, that activity would constitute prohibited transportation of merchandise pursuant to 46 U.S.C. App. 883.

10. What are the penalties for knowingly operating foreign-built aquatic plant harvesters, trash skimmers and/or transport barges in violation of U.S. Federal Codes and Regulations?

There are a number of penalty provisions which could apply:

Title 46, United States Code App., section 883 (the “Jones Act” or the “coastwise transportation statute”) provides for a penalty of forfeiture of the merchandise or a monetary amount up to the value thereof or the actual cost of the transportation, whichever is greater.

Title 46, United States Code, section 12122(a) provides for a civil penalty of not more than $10,000 for a violation of that chapter; it also provides that each day of continuing violation is a separate violation.

Title 46, United States Code, section 12122(b)(4) provides that a vessel and its equipment are subject to seizure and forfeiture to the U.S. Government when a vessel is employed in a trade without an appropriate trade endorsement.

Bid #106012 -4-

33 CFR Part 328 Definition of

Waters of the United States

← • § 328.1 - Purpose ← • § 328.2 - General scope ← • § 328.3 - Definitions ← • § 328.4 - Limits of jurisdiction ← • § 328.5 - Changes in limits of waters of the United States

AUTHORITY: 33 U.S.C. 1344.

Section 328.1 - Purpose.

This section defines the term "waters of the United States" as it applies to the jurisdictional limits of the authority of the Corps of Engineers under the Clean Water Act. It prescribes the policy, practice, and procedures to be used in determining the extent of jurisdiction of the Corps of Engineers concerning "waters of the United States." The terminology used by Section 404 of the Clean Water Act includes "navigable waters" which is defined at Section 502(7) of the Act as "waters of the United States including the territorial seas." To provide clarity and to avoid confusion with other Corps of Engineer regulatory programs, the term "waters of the United States" is used throughout 33 CFR Parts 320-330. This section does not apply to authorities under the Rivers and Harbors Act of 1899 except that some of the same waters may be regulated under both statutes (see 33 CFR Parts 322 and 329).

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Section 328.2 - General scope.

Waters of the United States include those waters listed in Section 328.3(a) below. The lateral limits of jurisdiction in those waters may be divided into three categories. The categories include the territorial seas, tidal waters, and non-tidal waters (see 33 CFR 328.4 (a), (b), and (c), respectively).

Section 328.3 - Definitions.

For the purpose of this regulation these terms are defined as follows:

.a. The term "waters of the United States" means 1. 1. All waters which are currently used, or were used in the past, or may be

susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. 2. All interstate waters including interstate wetlands; 3. 3. All other waters such as intrastate lakes, rivers, streams (including

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

.i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

.ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

.iii. Which are used or could be used for industrial purpose by industries in interstate commerce;

1. 4. All impoundments of waters otherwise defined as waters of the United States under the definition;

2. 5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section; 3. 6. The territorial seas; .7. Wetlands adjacent to waters (other than waters that are themselves wetlands)

identified in paragraphs (a)(1)-(6) of this section. .Waste treatment systems, including treatment ponds or lagoons designed to meet

the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.

1. 8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.

.b. The term "wetlands" means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and

Bid #106012 -6-

that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

.c. The term "adjacent" means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are "adjacent wetlands."

.d. The term "high tide line" means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide

due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

.e. The term "ordinary high water mark" means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

.f. The term "tidal waters" means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

Section 328.4 - Limits of jurisdiction.

.a. Territorial Seas. The limit of jurisdiction in the territorial seas is measured from the baseline in a seaward direction a distance of three nautical miles. (See 33 CFR 329.12)

.b. Tidal Waters of the United States. The landward limits of jurisdiction in tidal waters:

1. 1. Extends to the high tide line, or 2. 2. When adjacent non-tidal waters of the United States are present,

the jurisdiction extends to the limits identified in paragraph (c) of this section.

.c. Non-Tidal Waters of the United States. The limits of jurisdiction in non-tidal waters:

1. 1. In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or

2. 2. When adjacent wetlands are present, the jurisdiction extends

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beyond the ordinary high water mark to the limit of the adjacent wetlands. 3. 3. When the water of the United States consists only of wetlands the

jurisdiction extends to the limit of the wetland.

Section 328.5 - Changes in limits of waters of the United States.

Permanent changes of the shoreline configuration result in similar alterations of the boundaries of waters of the United States. Gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterway which also change the boundaries of the waters of the United States. For example, changing sea levels or subsidence of land may cause some areas to become waters of the United States while siltation or a change in drainage may remove an area from waters of the United States. Man-made changes may affect the limits of waters of the United States; however, permanent changes should not be presumed until the particular circumstances have been examined and verified by the district engineer. Verification of changes to the lateral limits of jurisdiction may be obtained from the district engineer.

Bid #106012 -8-

TITLE 19, CUSTOMS DUTIES

• CHAPTER I – BUREAU OF CUSTOMS & BORDER PROTECTION, DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF THE

TREASURY

• PART 4 – VESSELS IN FOREIGN & DOMESTIC TRADES – TABLE OF CONTENTS

SECTION 4.80b – Coastwise transportation of merchandise

(a) Effect of manufacturing or processing at intermediate port or place. A coastwise transportation of merchandise takes place, within the meaning of the coastwise laws, when merchandise laden at a point embraced within the coastwise laws (“coastwise point”) is unladen at another coastwise point, regardless of the origin or ultimate destination of the merchandise. However, merchandise is not transported coastwise if at an intermediate port or place other than a coastwise point (that is at a foreign port or place, or at a port or place in a territory or possession of the United States not subject to the coastwise laws), it is manufactured or processed into a new and different product, and the new and different product thereafter is transported to a coastwise point.

(b) Request for ruling. Interested parties may request an advisory ruling from Headquarters, United States Customs Service, Attention: Entry Procedures and Carriers Branch, as to whether a specific action taken or to be taken with respect to merchandise at the intermediate port or place will result in its becoming a new and different product for purposes of this section. The request shall be filed in accordance with the provisions of part 177 of this chapter.

ƒ TITLE 19, CUSTOMS DUTIES

← • CHAPTER 4 – TARIFF ACT OF 1930 ← • SUBTITLE III – ADMINISTRATIVE PROVISIONS ← • PART I – DEFINITIONS & NATIONAL CUSTOMS

AUTOMATION PROGRAM ← • SUBPART A -- DEFINITIONS

SECTION 1401. Miscellaneous

When used in this subtitle or in part I of subtitle II of this chapter—

.(a) Vessel

. The word ``vessel'' includes every description of water craft or other contrivance used, or capable of being used, as a means of transportation in water, but does not include aircraft.

.(b) Vehicle

. The word ``vehicle'' includes every description of carriage or other contrivance used, or capable of being used, as a means of transportation on land, but does not include aircraft.

.(c) Merchandise

. The word ``merchandise'' means goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of title 31.

.(d) Person The word ``person'' includes partnerships, associations, and corporations.

.(e) Master The word ``master'' means the person having the command of the vessel.

.(f) Day The word ``day'' means the time from eight o'clock antemeridian to five o'clock postmeridian.

.(g) Night The word ``night'' means the time from five o'clock postmeridian to eight o'clock antemeridian.

.(h) United States

. The term ``United States'' includes all Territories and possessions of the United States except the Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, and the island of Guam.

.(i) Officer of the customs; customs officer

. The terms ``officer of the customs'' and ``customs officer'' mean any officer of the United States Customs Service of the Treasury Department (also hereinafter referred to as the ``Customs Service'') or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of the Customs Service.

.(j) Customs waters

. The term ``customs waters'' means, in the case of a foreign vessel subject to a treaty or other arrangement between a foreign government and the United States enabling or permitting the authorities of the United States to board, examine, search, seize, or otherwise to enforce upon such vessel upon the high seas the laws of the United States, the waters within such distance of the coast of the United States as the said authorities are or may be so enabled or permitted by such treaty or arrangement and, in the case of every other vessel, the waters within four leagues of the coast of the United States.

.(k) Hovering vessel The term ``hovering vessel'' means--

.(1) anyvessel which is found or kept off the coast of the United States within or without the customs waters, if, from the history, conduct, character, or location of the vessel, it is reasonable to believe that such vessel is being used or may be used to introduce or promote or facilitate the introduction or attempted introduction of merchandise into the United States in violation of the laws of the United States; and

.(2) anyvessel which has visited a vessel described in paragraph (1).

.(l) Secretary The term ``Secretary'' means the Secretary of the Treasury or his delegate.

.(m) Controlled substance

The term ``controlled substance'' has the meaning given that term in section 802(6) of title 21. For

purposes of this chapter, a controlled substance shall be treated as merchandise the importation of which

into the United States is prohibited, unless the importation is authorized under-- .(1) an appropriate license or permit; or .(2) the Controlled Substances Import and Export Act [21 U.S.C. 951 et seq.].

.(n) Electronic transmission

. The term ``electronic transmission'' means the transfer of data or information through an authorized electronic data interchange system consisting of, but not limited to, computer modems and computer networks.

.(o) Electronic entry The term ``electronic entry'' means the electronic transmission to the Customs Service of--

.(1) entry information required for the entry of merchandise, and

.(2) entry summary information required for the classification and appraisement of the merchandise, the verification of statistical information, and the determination of compliance with applicable law.

.(p) Electronic data interchange system

. The term ``electronic data interchange system'' means any established mechanism approved by the Commissioner of Customs through which information can be transferred electronically.

.(q) National Customs Automation Program

. The term ``National Customs Automation Program'' means the program established under section 1411 of this title.

.(r) Import activity summary statement

. The term ``import activity summary statement'' refers to data or information transmitted electronically to the Customs Service, in accordance with such regulations as the Secretary prescribes, at the end of a specified period of time which enables the Customs Service to assess properly the duties, taxes and fees on merchandise imported during that period, collect accurate statistics and determine whether any other applicable requirement of law (other than a requirement relating to release from customs custody) is met.

.(s) Reconciliation

The term ``reconciliation'' means an electronic process, initiated at the request of an importer, under

which the elements of an entry (other than those elements related to the admissibility of the

merchandise) that are undetermined at the time the importer files or transmits the documentation or

information required by section 1484(a)(1)(B) of this title, or the import activity summary statement,

are provided to the Customs Service at a later time. A reconciliation is treated as an entry for purposes

of liquidation, reliquidation, recordkeeping, and protest.

TITLE 46, UNITED STATES CODE APPENDIX--SHIPPING

← • SUBTITLE II – VESSELS AND SEAMEN ← • PART H – IDENTIFICATION OF VESSELS ← • CHAPTER 121 – DOCUMENTATION OF VESSELS

Section 12101. Definitions and related terms in other laws (a) In this chapter--

.(1) “fisheries” includes processing, storing, transporting (except in foreign commerce), planting, cultivating, catching, taking, or harvesting fish, shellfish, marine animals, pearls, shells, or marine vegetation in the navigable waters of the United States or in the exclusive economic zone.

.(2) “rebuilt” has the same meaning as in the second proviso of section 27 of the Merchant Marine Act, 1920 (46 App. U.S.C. 883).

.(b) When used in a law, regulation, document, ruling, or other official act referring to the documentation of a vessel--

.(1) “certificate of registry”, “register”, and “registry” mean a registry endorsement as provided in section 12105 of this title.

.(2) “license”, “enrollment and license”, “license for the coastwise (or coasting) trade”, and “enrollment and license for the coastwise (or coasting) trade” mean a coastwise endorsement as provided in section 12106 of this title.

[(3) Repealed. Pub. L. 104-324, title XI, Sec. 1115(b)(2), Oct. 19, 1996, 110 Stat. 3972.]

(4) “yacht” means a recreational vessel even if not documented.

TITLE 46, UNITED STATES CODE APPENDIX--SHIPPING

← • SUBTITLE II – VESSELS AND SEAMEN ← • PART H – IDENTIFICATION OF VESSELS ← • CHAPTER 121 – DOCUMENTATION OF VESSELS

SECTION 12122. Penalties

.(a) A person that violates this chapter or a regulation prescribed under this chapter is liable to the United States Government for a civil penalty of not more than $10,000. Each day of continuing violation is a separate violation.

.(b) A vessel and its equipment are liable to seizure by and forfeiture to the United States Government--

.(1) when the owner of a vessel or the representative or agent of the owner knowingly falsifies or conceals a material fact, or knowingly makes a false statement or representation about the documentation or when applying for documentation of the vessel;

.(2) when a certificate of documentation is knowingly and fraudulently used for a vessel;

.(3) when a vessel is operated after its endorsement has been denied or revoked under section 12123 of this title;

.(4) when a vessel is employed in a trade without an appropriate trade endorsement;

.(5) when a documented vessel with only a recreational endorsement is operated other than for pleasure; or

.(6) when a documented vessel, other than a vessel with only a recreational endorsement, is placed under the command of a person not a citizen of the United States.

.(c) In addition to penalties under subsections (a) and (b), the owner of a documented vessel for which a fishery endorsement has been issued is liable to the United States Government for a civil penalty of up to $100,000 for each day in which such vessel has engaged in fishing (as such term is defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)) within the exclusive economic zone of the United States, if the owner or the representative or agent of the owner knowingly falsified or concealed a material fact, or knowingly made a false statement or representation, with respect to the eligibility of the vessel under section 12102(c) of this title in applying for or applying to renew such fishery endorsement.

ƒ TITLE 46, UNITED STATES CODE APPENDIX--SHIPPING

• CHAPTER 24--MERCHANT MARINE ACT, 1920 § 883. Transportation of merchandise between points in United States in other than domestic built or rebuilt and documented vessels; incineration of hazardous waste at sea

No merchandise, including merchandise owned by the United States Government, a State (as defined in

section 2101 of the 1 title 46), or a subdivision of a State, shall be transported by water, or by land and

water, on penalty of forfeiture of the merchandise (or a monetary amount up to the value thereof as

determined by the Secretary of the Treasury, or the actual cost of the transportation, whichever is greater,

to be recovered from any consignor, seller, owner, importer, consignee, agent, or other person or persons

so transporting or causing said merchandise to be transported), between points in the United States,

including Districts, Territories, and possessions thereof embraced within the coastwise laws, either

directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in

and documented under the laws of the United States and owned by persons who are citizens of the United

States, or vessels to which the privilege of engaging in the coastwise trade is extended by section 808 of

this Appendix or section 22 2 of this Act: Provided, That no vessel of more than 200 gross tons (as

measured under chapter 143 of title 46) having at any time acquired the lawful right to engage in the

coastwise trade, either by virtue of having been built in, or documented under the laws of the United

States, and later sold foreign in whole or in part, or placed under foreign registry, shall hereafter acquire

the right to engage in the coastwise trade: Provided further, That no vessel which has acquired the lawful

right to engage in the coastwise trade, by virtue of having been built in or documented under the laws of

the United States, and which has later been rebuilt shall have the right thereafter to engage in the

coastwise trade, unless the entire rebuilding, including the construction of any major components of the

hull or superstructure of the vessel, is effected within the United States, its territories (not including trust

territories), or its possessions: Provided further, That this section shall not apply to merchandise

transported between points within the continental United States, including Alaska, over through routes

heretofore or hereafter recognized by the Surface Transportation Board for which routes rate tariffs have

been or shall hereafter be filed with the Board when such routes are in part over Canadian rail lines and

their own or other connecting water facilities: Provided further, That this section shall not become

effective upon the Yukon River until the Alaska Railroad shall be completed and the Secretary of

Transportation shall find that proper facilities will be furnished for transportation by persons citizens of

the United States for properly handling the traffic: Provided further, That this section shall not apply to

the transportation of merchandise loaded on railroad cars or to motor vehicles with or without trailers, and

with their passengers or contents when accompanied by the operator thereof, when such railroad cars or

motor vehicles are transported in any railroad car ferry operated between fixed termini on the Great Lakes

as a part of a rail route, if such car ferry is owned by a common carrier by water and operated as part of a

rail route with the approval of the Surface Transportation Board, and if the stock of such common carrier

by water, or its predecessor, was owned or controlled by a common carrier by rail prior to June 5, 1920,

and if the stock of the common carrier owning such car ferry is, with the approval of the Board, now

owned or controlled by any common carrier by rail and if such car ferry is built in and documented under

the laws of the United States: Provided further, That upon such terms and conditions as the Secretary of

the Treasury by regulation may prescribe, and, if the transporting vessel is of foreign registry, upon a

finding by the Secretary of the Treasury, pursuant to information obtained and furnished by the Secretary

of State, that the government of the nation of registry extends reciprocal privileges to vessels of the

United States, this section shall not apply to the transportation by vessels of the United States not

qualified to engage in the coastwise trade, or by vessels of foreign registry, of (a) empty cargo vans,

empty lift vans, and empty shipping tanks, (b) equipment for use with cargo vans, lift vans, or shipping

tanks, (c) empty barges specifically designed for carriage aboard a vessel and equipment, excluding

propulsion equipment, for use with such barges, and (d) any empty instrument for international traffic

exempted from application of the customs laws by the Secretary of the Treasury pursuant to the

provisions of section 1322(a) of title 19, if the articles described in clauses (a) through (d) are owned or

leased by the owner or operator of the transporting vessel and are transported for his use in handling his

cargo in foreign trade; and (e) stevedoring equipment and material, if such equipment and material is

owned or leased by the owner or operator of the transporting vessel, or is owned or leased by the

stevedoring company contracting for the lading or unlading of that vessel, and is transported without

charge for use in the handling of cargo in foreign trade: Provided further, That upon such terms and

conditions as the Secretary of the Treasury by regulation may prescribe, and, if the transporting vessel is

of foreign registry, upon his finding, pursuant to information furnished by the Secretary of State, that the

government of the nation of registry extends reciprocal privileges to vessels of the United States, the

Secretary of the Treasury may suspend the application of this section to the transportation of merchandise

between points in the United States (excluding transportation between the continental United States and

noncontiguous states, districts, territories, and possessions embraced within the coastwise laws) which,

while moving in the foreign trade of the United States, is transferred from a non-self-propelled barge

certified by the owner or operator to be specifically designed for carriage aboard a vessel and regularly

carried aboard a vessel in foreign trade to another such barge owned or leased by the same owner or

operator, without regard to whether any such barge is under foreign registry or qualified to engage in the

coastwise trade: Provided further, That until April 1, 1984, and notwithstanding any other provisions of

this section, any vessel documented under the laws of the United States and owned by persons who are

citizens of the United States may, when operated upon a voyage in foreign trade, transport merchandise in

cargo vans, lift vans, and shipping-tanks between points embraced within the coastwise laws for transfer

to or when transferred from another vessel or vessels, so documented and owned, of the same operator

when the merchandise movement has either a foreign origin or a foreign destination; but this proviso (1)

shall apply only to vessels which that same operator owned, chartered or contracted for the construction

of prior to November 16, 1979, and (2) shall not apply to movements between points in the contiguous

United States and points in Hawaii, Alaska, the Commonwealth of Puerto Rico and United States

territories and possessions. For the purposes of this section, after December 31, 1983, or after such time

as an appropriate vessel has been constructed and documented as a vessel of the United States, the

transportation of hazardous waste, as defined in section 6903(5) of title 42, from a point in the United

States for the purpose of the incineration at sea of that waste shall be deemed to be transportation by

water of merchandise between points in the United States: Provided, however, That the provisions of this

sentence shall not apply to this transportation when performed by a foreign-flag ocean incineration vessel,

owned by or under construction on May 1, 1982, for a corporation wholly owned by a citizen of the

United States; the term "citizen of the United States", as used in this proviso, means a corporation as

defined in section 802(a) and (b) of this Appendix. The incineration equipment on these vessels shall

meet all current United States Coast Guard and Environmental Protection Agency standards. These

vessels shall, in addition to any other inspections by the flag state, be inspected by the United States Coast

Guard, including drydock inspections and internal examinations of tanks and void spaces, as would be

required of a vessel of the United States. Satisfactory inspection shall be certified in writing by the

Secretary of Transportation. Such inspections may occur concurrently with any inspections required by

the flag state or subsequent to but no more than one year after the initial issuance or the next scheduled

issuance of the Safety of Life at Sea Safety Construction Certificate. In making such inspections, the

Coast Guard shall refer to the conditions established by the initial flag state certification as the basis for

evaluating the current condition of the hull and superstructure. The Coast Guard shall allow the

substitution of an equivalent fitting, material, appliance, apparatus, or equipment other than that required

for vessels of the United States if the Coast Guard has been satisfied that fitting, material, appliance,

apparatus, or equipment is at least as effective as that required for vessels of the United States 3 Provided

further, That for the purposes of this section, supplies aboard United States documented fish processing

vessels, which are necessary and used for the processing or assembling of fishery products aboard such

vessels, shall be considered ship's equipment and not merchandise: Provided further, That for purposes of

this section, the term "merchandise" includes valueless material: Provided further, That this section

applies to the transportation of valueless material or any dredged material regardless of whether it has

commercial value, from a point or place in the United States or a point or place on the high seas within

the Exclusive Economic Zone as defined in the Presidential Proclamation of March 10, 1983, to another

point or place in the United States or a point or place on the high seas within that Exclusive Economic

Zone: Provided further, That the transportation of any platform jacket in or on a launch barge between

two points in the United States, at one of which there is an installation or other device within the meaning

of section 1333(a) of title 43, shall not be deemed transportation subject to this section if the launch barge

has a launch capacity of 12,000 long tons or more, was built as of June 7, 1988, and is documented under

the laws of the United States, and the platform jacket cannot be transported on and launched from a

launch barge of lesser launch capacity that is identified by the Secretary of Transportation and is available

for such transportation. 1 So in original. The word "the" probably should not appear. 2 See References in Text note below. 3 So in original. Probably should be followed by a colon