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Agenda 03/22/2016 Item #11C 3/22/2016 11.C. EXECUTIVE SUMMARY Recommendation to declare that emergency conditions exist at Clam Pass and in the Clam Bay Natural Resource Protection Area (NRPA) and ratify staff actions to quickly mobilize a dredging firm to restore sufficient tidal flushing prior to turtle nesting season, which starts on May 1,2016. OBJECTIVE: To quickly mobilize a dredging firm to restore tidal flushing at Clam Pass to avoid further environmental harm to the Clam Bay Natural Resource Protection Area(NRPA). CONSIDERATIONS: Clam pass directly impacts the Clam Bay NRPA which is a 560 acre estuarine system consisting of beaches, shallow bays, tidal creeks, seagrass beds, and mangrove forests. This environmentally sensitive asset is managed by the Pelican Bay Services Division (PBSD). Mohamed Dabees, a P.E. at Humiston and Moore Engineers, provided the following assessment of Clam Pass on February 1, 2016: "The hydraulic and physical monitoring data indicate the pass to be hydraulically stable but critical due to the sand accumulations in the interior flood shoal sections. Over the winter months it is expected if severe weather conditions continue then waves and wind will continue dominating the inlet dynamics over tidal flow which may reduce inlet stability. Maintenance dredging is recommended, once the required U.S. Army Corps of Engineers permit (in process) is obtained, to restore the flow areas in the interior flood shoal areas to meet design template, improve inlet stability and its resiliency to withstand sequence of storm events in the future." The National Weather Service recently reported that rainfall in coastal Collier County from November 2, 2015 to February 19, 2016 was 18.96" which was an increase of 12.08" or 278% higher than normal for this period. This infusion of freshwater, along with the gradual narrowing of Clam Pass has impaired the tidal circulation in Clam Bay. Similar conditions in 2012 and 2013 resulted in degradation of water quality. Clam Pass remains the primary source of tidal flushing for Clam Bay and the present condition of the inlet does not allow for adequate tidal exchange. In order to restore sufficient tidal flushing, it is imperative to commence and complete dredging operations as soon as possible prior to turtle nesting season, which begins on May 1, 2016. Staff was reluctant to issue a solicitation without the assurance that a permit would be forthcoming and permit conditions, if any, properly included. The PBSD's 10-year maintenance dredging permit was issued by the Army Corps of Engineers on March 9,2016. Staff worked with the engineering firm Humiston and Moore, to prepare and distribute a solicitation in the open market with a compressed due date. Invitation to Bid(ITB) 16-6620 was issued on March 4, 2016 with a due date of March 23, 2016. Florida Statute 255.0525 requires construction projects that may exceed $500,000 to be posted publicly for a minimum of thirty (30) days, except in cases where an emergency exists. If an emergency is declared, "the procedures required in this section may be altered by the local governmental entity in any manner that is reasonable under the emergency circumstances." Staff is requesting that the Board declare that emergency conditions exist at Clam Pass, waive the Procurement Ordinance, ratify ITB 16-6620 with the compressed solicitation schedule, and authorize the County Manager or his designee to enter into a contract with the most responsive bidder immediately following the due date of March 23, 2016. Staff will subsequently seek TDC Packet Page-50- 3/22/2016 11.C. approval on March 28, 2016, as required by resolution prior to expending TDC funds and bring the approved contract back to the Board for ratification on April 12, 2016. None of the sand dredged from the pass will be used north of the pass for upland beach renourishment. The sand will be distributed in accordance with the permitted design and any additional sand will be used south of the pass on the public beach. PBSD BOARD RECOMMENDATION: At its meeting on March 2, 2016, the PBSD Board acknowledged the emergency situation and endorsed staff's recommendation to pursue an expedited procurement process in order to commence dredging operations as soon as possible. FISCAL IMPACT: No funds have been expended on this project; however, dredging for pass and inlet maintenance is eligible for Tourist Development Council (TDC) funds as was the case in 2012 and 2013. The engineer's estimate of probable cost is $459,800. Funds in the amount of $400,000 are budgeted and presently available in TDC Beach Renourishment Fund (195) in Project No. 88032 (Clam Pass Dredging). Additional funding is available in Fund(195) reserves subject to budget amendment processing. GROWTH MANAGEMENT IMPACT: None LEGAL CONSIDERATIONS: Pass and inlet maintenance is an authorized expenditure of tourist development tax funds pursuant to Ordinance No. 92-60, as amended. Prior to the expenditure of tourist development tax funds, the Tourist Development Council ("TDC") is required to make a recommendation to the Board of County Commissioners, favorable or not, with a recommended fmding as to whether a project promotes tourism. Staff plans to seek a TDC recommendation at the next regularly scheduled TDC meeting on March 28, 2016. This /Th item has been approved as to form and legality and requires majority vote for approval.—CMG RECOMMENDATION: To declare that emergency conditions exist at Clam Pass, waive the Procurement Ordinance, ratify ITB 16-6620 with the compressed solicitation schedule, and authorize the County Manager or his designee to enter into a contract with the most responsive bidder immediately following the compressed solicitation due date of March 23, 2016. Prepared by: Lisa Jacob, Associate Project Manager,Pelican Bay Services Division Approved by: Neil Dorrill, Director, Pelican Bay Services Division Attachments: (1)Emergency Resolution (2) Clam Pass Condition Update (3)ITB 16-6620 (4)Engineer's Opinion of Probable Cost (5) 10-Year ACOE Permit (6)Aerial Photography of Clam Bay NRPA (7)Construction Plans 03.08.2016 Packet Page-51- 3/22/2016 11.C. COLLIER COUNTY Board of County Commissioners Item Number: 11.11.C. Item Summary: Recommendation to declare that emergency conditions exist at Clam Pass and in the Clam Bay Natural Resource Protection Area (NRPA) and ratify staff actions to quickly mobilize a dredging firm to restore sufficient tidal flushing prior to turtle nesting season, which starts on May 1, 2016. Meeting Date: 3/22/2016 Prepared By Name: McCaughtryMary Title: Operations Analyst,Pelican Bay Services 3/10/2016 10:11:41 AM Submitted by n Title: Operations Analyst,Pelican Bay Services Name: McCaughtryMary 3/10/2016 10:11:43 AM Approved By Name: KlatzkowJeff Title: County Attorney, Date: 3/15/2016 3:01:15 PM Name: IsacksonMark Title: Division Director-Corp Fin&Mgmt Svc, Office of Management&Budget Date: 3/15/2016 3:47:46 PM Name: KlatzkowJeff Title: County Attorney, Date: 3/15/2016 4:04:30 PM Name:FinnEd Title: Management/Budget Analyst, Senior, O ffice of Management&Budget Date: 3/15/2016 5:24:11 PM Packet Page -52- 3/22/2016 11.C. Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 3/15/2016 5:47:00 PM Packet Page -53- 3/22/2016 11.C. RESOLUTION NO. 16- A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA DECLARING THAT EMERGENCY CONDITIONS EXIST AT CLAM PASS AND RATIFY STAFF ACTIONS TO QUICKLY MOBILIZE A DREDGING FIRM TO RESTORE TIDAL FLUSHING PRIOR TO TURTLE NESTING SEASON, WHICH STARTS ON MAY 1,2016. WHEREAS, the National Weather Service recently reported that rainfall in coastal Collier County from November 2, 2015 to February 19, 2016 was 18.96", an increase of 12.08" or 278% higher than normal for this period; and WHEREAS, this infusion of freshwater along with the gradual narrowing of Clam Pass has impaired the tidal circulation in Clam Bay; and WHEREAS, Clam Pass remains the primary source of tidal flushing for Clam Bay and the present condition of the inlet does not allow for adequate tidal exchange; and WHEREAS, in order to restore sufficient tidal flushing, it is imperative to commence and complete dredging operations as soon as possible prior to turtle nesting season, which begins on May 1, 2016; and WHEREAS, the PBSD's 10-year maintenance dredging permit was issued by the Army Corps of Engineers on March 9, 2016; and WHEREAS, staff worked with the engineering firm Humiston and Moore, to prepare and distribute a solicitation in the open market with a compressed due date; and WHEREAS, the Engineer has advised that"maintenance dredging is recommended, once the required U.S. Army Corps of Engineers permit (in process) is obtained, to restore the flow areas in the interior flood shoal areas to meet design template, improve inlet stability and its resiliency to withstand sequence of storm events in the future;" and WHEREAS, Section 255.0525, Fla. Stat. requires construction projects that may exceed $500,000 to be posted publicly for a minimum of thirty (30) days, except in cases where an emergency exists; and WHEREAS, if an emergency situation is declared, the procedures required in this section may be altered by the local governmental entity in any manner that is reasonable under the emergency circumstances. NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,FLORIDA,that 1. Emergency conditions exist in Clam Pass. Packet Page -54- 3/22/2016 11 .C. 2. It is necessary to waive the Procurement Ordinance and to expedite the competitive bid process as provided for in Section 255.0525, Fla. Stat. 3. The County Manager or his designee is authorized to enter into an agreement with the most responsive bidder to ITB 16-6620 immediately following the solicitation due date of March 23, 2016. PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this day of , 2016. ATTEST: BOARD OF COUNTY COMMISSIONERS DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA By: DONNA FIALA, CHAIR Approved as to form and legality: (54.."/ Colleen M. Greene Assistant County Attorney CE\ Packet Page -55- 3/22/2016 11 .C. CLAM PASS CONDITION UPDATE February 15`,2016 Mohamed Dabees, Ph.D., P.E., D.CE. Humiston&Moore Engineers Background In two months Clam Pass will have remained open for 3 years since it was last dredged in March 2013.The 2013 partial dredging of the design template was permitted and constructed as an emergency event to reopen the pass following closure in late 2012. The dredging event of 2013 was limited to comply with the Nationwide US Army Corps of Engineers permit conditions which was necessary to expedite the dredging and reopen the inlet. Following the reopening of the Pass an update to the management plan for the Clam Bay as a Natural Resource Protection Area (NRPA) was developed in 2014 and adopted by the Collier County Board of County Commissioners in January 2015. The updated management plan included design criteria to assess the inlet stability and conditions for maintenance dredging to avoid potential inlet closure. The process to obtain State and Federal long-term permits for the updated plan was initiated in December 2014, and the updated state permit was obtained in the summer of 2015 while the Federal permit is in its final processing stage. Monitoring data and observations of recent conditions In addition to the ecological and biological monitoring of the bay system and its function as a protected environmental resource,the monitoring program includes hydraulic and physical monitoring of the inlet and bay system to monitor the stability of the pass and assess maintenance requirements. Monitoring of the hydraulic and physical conditions of the Clam Bay system continues according to the updated NRPA management plan. The hydraulic monitoring includes continuous water level and tidal data collection at 4 locations within the bay system. The physical monitoring is based on an annual monitoring survey, monthly aerial photos and periodic site observations. ^The 2015 monitoring survey was completed in April 2015 corresponding to 2-years after the latest dredging event. The survey data and analysis of comparative plots at survey stations were used to quantify flow areas and sand accumulation within the design template. The 2015 data and recent field observations indicate sand accumulation is at critical conditions especially in the interior flood shoal sections of the maintenance dredging template.The monitoring data also showed growth and seaward advance of the inlet ebb shoal features at the gulf entrance of the pass. The seaward advance of the ebb shoal helps dissipate wave energy and bypass sand to adjacent beaches around the inlet channel.The calm tropical summer season of 2015 and strong astronomical tides including the lunar eclipse on September 27, 2015 helped improve the flow conditions at Clam Pass during the summer and fall seasons of 2015. The morphologic futures of the inlet ebb shoal were essential to the pass resiliency in withstanding the sustained winds and waves that dominated the coastal processes in January of 2016.The cold fronts of this winter are associated with the El Nino phenomenon, which occurs usually every six or seven years in the Pacific Ocean in which warm water near the equator results in atmospheric conditions that affect winter weather patterns over the entire country.The main impact of El Nino is that it shifts to the south all the winter storms that typically sweep across the middle and northern parts of the country.This brings severe weather conditions with higher wind and wave energy to the southwest Florida gulf coast than typical winter conditions.The natural resiliency of the pass to remain open comes from its ability to absorb influx of sediment through tidal flow meandering around the interior shoaling areas during flood tide and remove accumulated sediment to the outer ebb shoal during ebb tide. However, when the flood shoals become too full,the flow becomes constricted which may affect the inlet hydraulic stability.As the volume of sand accumulation in the flood shoal areas reach near the dredging template capacity, the constricted flow also forces the interior channel meanders to encroach and undermine mangrove shorelines in the flood shoal area. If the Pass interior flow areas become too constricted, the resulting diminished flow may not be able to effectively maintain the pass open when large volume of sediment transported along the coastline is deposited onto the inlet during storms. Summary and Recommendation The hydraulic and physical monitoring data indicate the pass to be hydraulically stable but critical due to the sand accumulations in the interior flood shoal sections. Over the winter months it is expected if severe weather conditions continue then waves and wind will continue dominating the inlet dynamics over tidal flow which may reduce inlet stability. Maintenance dredging is recommended, once the required U.S. Army Corps of Engineers permit(in process) is obtained, to restore the flow areas in the interior flood shoal areas to meet design template,improve inlet stability and its resiliency to withstand sequence of storm events in the future. Packet Page -56- 3/22/2016 11.0. Co per County Administrative Services Department Procurement Services Division Clam Pass Dredging COLLIER COUNTY BID NO. 16-6620 COLLIER COUNTY, FLORIDA Adam Northrup, Procurement Strategist Email: adamnorthrup @colliergov.net Telephone: (239) 252 - 6098 FAX: (239) 252 - 6302 Design Professional: Brett Moore Humiston & Moore Engineers 5679 Strand Court Naples, FL 34110 P u emerdSerr srAesin•3327 Tamiami Trail East•Naples,Florida 34112-0901 0239-252-8447•wxs.c>9ergov.nettprocuremenlse;ices 1 16-6620 Clam Pass Dredging Packet Page -57- 3/22/2016 11 .C. TABLE OF CONTENTS PUBLIC NOTICE 3 PART B - INSTRUCTIONS TO BIDDERS 5 CONSTRUCTION BID 12 BID SCHEDULE 13 MATERIAL MANUFACTURERS 14 LIST OF MAJOR SUBCONTRACTORS 14 STATEMENT OF EXPERIENCE OF BIDDER 16 TRENCH SAFETY ACT 17 IMMIGRATION LAW AFFIDAVIT CERTIFICATION 18 COLLIER COUNTY SOLICITATIONS SUBSTITUTE W—9 19 BID BOND 23 BIDDERS CHECK LIST 25 CONSTRUCTION AGREEMENT 26 EXHIBIT A 1: PUBLIC PAYMENT BOND 33 EXHIBIT A 2: PUBLIC PERFORMANCE BOND 36 EXHIBIT B: INSURANCE REQUIREMENTS 39 EXHIBIT C: RELEASE AND AFFIDAVIT FORM 43 EXHIBIT D: FORM OF CONTRACT APPLICATION FOR PAYMENT 45 EXHIBIT E: CHANGE ORDER 46 EXHIBIT F: CERTIFICATE OF SUBSTANTIAL COMPLETION 47 EXHIBIT G: FINAL PAYMENT CHECKLIST 49 EXHIBIT H: GENERAL TERMS AND CONDITIONS 50 EXHIBIT I: SUPPLEMENTAL TERMS AND CONDITIONS 82 EXHIBIT J: TECHNICAL SPECIFICATIONS 83 EXHIBIT K: PERMITS 84 EXHIBIT L: STANDARD DETAILS 85 EXHIBIT M: PLANS AND SPECIFICATIONS 86 EXHIBIT N: CONTRACTOR'S KEY PERSONNEL ASSIGNED TO THE PROJECT 87 2 16-6620 Clam Pass Dredging Packet Page -58- 3/22/2016 11.C. Col per County Administrative Services Department Procurement Services Division PUBLIC NOTICE INVITATION TO BID Clam Pass Dredging COUNTY BID NO. 16-6620 Separate sealed bids for the construction of The Clam Pass Dredging, addressed to Ms. Joanne Markiewicz, Director, Procurement Services, will be received at the Collier County Government, Purchasing Department, 3327 Tamiami Trail E, Naples, FL 34112, until 3:00 P.M. LOCAL TIME, on the 23rd day of March, 2016, at which time all bids will be publicly opened and read aloud. Any bids received after the time and date specified will not be accepted and shall be returned unopened to the Bidder. The anticipated project budget is: $750,000.00 . A non-mandatory pre-bid conference shall be held at the Purchasing Department, Conference Room A, at 11:00 a.m. LOCAL TIME on the 9th day of March, 2016, at which time all prospective Bidders may have questions answered regarding the Bidding Documents for this Project. Sealed envelopes containing bids shall be marked or endorsed "Bid for Collier County Government, Collier County, Clam Pass Dredging Bid No. 16-6620 and Bid Date of 03/09/2016". No bid shall be considered unless it is made on an unaltered Bid form which is included in the Bidding Documents. The Bid Schedule shall be removed from the Bidding Documents prior to submittal. One contract will be awarded for all Work. Bidding Documents may be examined on the Collier County Purchasing Department Online Bidding System website: www.colliergov.net/bid. Copies of the Bidding Documents may be obtained only from the denoted website. Bidding Documents obtained from sources other than the Collier County Purchasing Department website may not be accurate or current. Each bid shall be accompanied by a certified or cashier's check or a Bid Bond in an amount not less than five percent (5%) of the total Bid to be retained as liquidated damages in the event the Successful Bidder fails to execute the Agreement and file the required bonds and insurance within ten (10) calendar days after the receipt of the Notice of Award. The Successful Bidder acknowledges and agrees that it shall execute the Agreement in the form attached hereto and incorporated herein. The Successful Bidder shall be required to furnish the necessary Payment and Performance Bonds, as prescribed in the General Conditions of the Contract Documents. All Bid Bonds, Payment and Performance Bonds, Insurance Contracts and Certificates of Insurance shall be either executed by or countersigned by a licensed resident agent of the surety or insurance company having its place of business in the State of Florida. Further, the said surety or insurance company shall be duly licensed and qualified to do business in the State of Florida. Attorneys-in-fact that sign Bid Bonds or Payment and Performance Bonds must file with each bond a certified and effective dated copy of their Power of Attorney. 3 16-6620 Clam Pass Dredging Packet Page -59- 3/22/2016 11 .C. In order to perform public work, the Successful Bidder shall, as applicable, hold or obtain such contractor's and business licenses, certifications and registrations as required by State statutes and County ordinances. Before a contract will be awarded for the Work contemplated herein, the Owner shall conduct such investigations as it deems necessary to determine the performance record and ability of the apparent low Bidder to perform the size and type of work specified in the Bidding Documents. Upon request, the Bidder shall submit such information as deemed necessary by the Owner to evaluate the Bidder's qualifications. The Successful Bidder shall be required to finally complete all Work within Twenty-Eight (28) calendar days from and after the Commencement Date specified in the Notice to Proceed. The Owner reserves the right to reject all Bids or any Bid not conforming to the intent and purpose of the Bidding Documents, and to postpone the award of the contract for a period of time which, however, shall not extend beyond one hundred twenty (120) days from the bid opening date without the consent of the Successful Bidder. Dated this 4th day of March 2016. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA BY: /s/ Joanne Markiewicz Director, Procurement Services Division 4 16-6620 Clam Pass Dredging Packet Page -60- 3/22/2016 11 .C. PART B-INSTRUCTIONS TO BIDDERS Section 1. Definitions 1.1 The term "Owner" used herein refers to the Board of County Commissioners, or its duly authorized representative. 1.2 The term "Project Manager" used herein refers to the Owner's duly authorized representative and shall mean the Division Administrator or Department Director, as applicable, acting directly or through duly authorized representatives. 1.3 The term "Design Professional" refers to the licensed professional engineer or architect who is in privity with the Owner for the purpose of designing and/or monitoring the construction of the project. At the Owner's discretion, any or all duties of the Design Professional referenced in the Contract Documents may be assumed at any time by the Project Manager on behalf of the Owner. Conversely, at the Owner's discretion the Project Manager may formally assign any of his/her duties specified in the Contract Documents to the Design Professional. 1.4 The term "Bidder" used herein means one who submits a bid directly to the Owner in response to this solicitation. 1.5 The term "Successful Bidder" means the lowest, qualified, responsible and responsive Bidder who is awarded the contract by the Board of County Commissioners, on the basis of the Owner's evaluation. 1.6 The term "Bidding Documents" includes the Legal Advertisement, these Instructions to Bidders, the Bid Schedule and the Contract Documents as defined in the Agreement. 1.7 The term "Bid" shall mean a completed Bid Schedule, bound in the Bidding Documents, properly signed, providing the Owner a proposed cost for providing the services required in the Bidding Documents. Section 2. Preparation of Bids 2.1 The Bids must be submitted on the standard form herein furnished by the Owner (pages 15 - 29 as bound in these Bidding Documents). By submitting a Bid, Bidder acknowledges and agrees that it shall execute the Agreement in the form attached hereto and incorporated herein. The Bidder shall complete the Bid in ink or by typewriter and shall sign the Bid correctly. Bid Schedules submitted on disk/CD shall be accompanied by a hard copy of the completed Bid Schedule which shall be signed and dated by the Bidder. The Bid may be rejected if it contains any omission, alteration of form, conditional bid or irregularities of any kind. Bids must be submitted in sealed envelopes, marked with the Bid Number, Project Name and Bid opening Date and Time, and shall be addressed to the Purchasing Department, 3327 Tamiami Trail E, Naples, FL 34112. If forwarded by mail, the sealed envelope containing the Bid must be enclosed in another sealed envelope addressed as above. Bids received at the location specified herein after the time specified for bid opening will be returned to the bidder unopened and shall not be considered. 5 16-6620 Clam Pass Dredging Packet Page -61- 3/22/2016 11.C. Section 3. Bid Deposit Requirements 3.1 No Bid shall be considered or accepted unless at the time of Bid filing the same shall be accompanied by a cashier's check, a cash bond posted with the County Clerk, a certified check payable to Owner on some bank or trust company located in the State of Florida insured by the Federal Deposit Insurance Corporation, or Bid Bond, in an amount not less than 5% of the bidder's maximum possible award (base bid plus all add alternates) (collectively referred to herein as the "Bid Deposit"). The Bid Deposit shall be retained by Owner as liquidated damages if the Successful Bidder fails to execute and deliver to Owner the unaltered Agreement, or fails to deliver the required Performance and Payment Bonds or Certificates of Insurance, all within ten (10) calendar days after receipt of the Notice of Award. Bid Bonds shall be executed by a corporate surety licensed under the laws of the State of Florida to execute such bonds, with conditions that the surety will, upon demand, forthwith make payment to Owner upon said bond. Bid Deposits of the three (3) lowest Bidders shall be held until the Agreement has been executed by the Successful Bidder and same has been delivered to Owner together with the required bonds and insurance, after which all three (3) Bid Deposits shall be returned to the respective Bidders. All other Bid Deposits shall be released within ten (10) working days of the Bid Opening. No Bid including alternates, shall be withdrawn within one hundred and twenty (120) days after the public opening thereof. If a Bid is not accepted within said time period it shall be deemed rejected and the Bid Deposit shall be returned to Bidder. In the event that the Owner awards the contract prior to the expiration of the one hundred twenty (120) day period without selecting any or all alternates, the Owner shall retain the right to subsequently award to the Successful Bidder said alternates at a later time but no later than one hundred twenty (120) days from opening, unless otherwise agreed by the Procurement Director and the Successful Bidder. 3.2 The Successful Bidder shall execute two (2) copies of the Agreement in the form attached and deliver same to Owner within the time period noted above. The Owner shall execute all copies and return one fully executed copy of the Agreement to Successful Bidder within thirty (30) working days after receipt of the executed Agreement from Successful Bidder unless any governmental agency having funding control over the Project requires additional time, in which event the Owner shall have such additional time to execute the Agreement as may be reasonably necessary. Section 4. Right to Reject Bids 4.1 The Owner reserves the right to reject any and all Bids or to waive informalities and negotiate with the apparent lowest, qualified Bidder to such extent as may be necessary for budgetary reasons. Section 5. Signing of Bids 5.1 Bids submitted by a corporation must be executed in the corporate name by the president, a vice president, or duly authorized representative. The corporate address and state of incorporation must be shown below the signature. 5.2 Bids by a partnership must be executed in the partnership name and signed by a general partner whose title must appear under the signature and the official address of the partnership must be shown below said signature. 6 16-6620 Clam Pass Dredging Packet Page -62- 3/22/2016 11 .C. 5.3 If Bidder is an individual, his or her signature shall be inscribed. ,--� 5.4 If signature is by an agent or other than an officer of corporation or general partner of partnership, a properly notarized power of attorney must be submitted with the Bid. 5.5 All Bids shall have names typed or printed below all signatures. 5.6 All Bids shall state the Bidder's contractor license number. 5.7 Failure to follow the provisions of this section shall be grounds for rejecting the Bid as irregular or unauthorized. Section 6. Withdrawal of Bids Any Bid may be withdrawn at any time prior to the hour fixed in the Legal Advertisement for the opening of Bids, provided that the withdrawal is requested in writing, properly executed by the Bidder and received by Owner prior to Bid Opening. The withdrawal of a Bid will not prejudice the right of a Bidder to file a new Bid prior to the time specified for Bid opening. Section 7. Late Bids No Bid shall be accepted that fails to be submitted prior to the time specified in the Legal Advertisement. Section 8. Interpretation of Contract Documents 8.1 No interpretation of the meaning of the plans, specifications or other Bidding Documents shall be made to a Bidder orally. Any such oral or other interpretations or clarifications shall be without legal effect. All requests for interpretations or clarifications shall be in writing and addressed on the County's Online Bidding System to be given consideration. All such requests for interpretations or clarification must be received as directed in the Online Bidding System instructions and prior to the Bid opening date. Any and all such interpretations and supplemental instructions shall be in the form of written addendum which, if issued via the Online Bidding System at their respective email addresses furnished for such purposes no later than three (3) working days prior to the date fixed for the opening of Bids. Such written addenda shall be binding on Bidder and shall become a part of the Bidding Documents. 8.2 It shall be the responsibility of each Bidder to ascertain, prior to submitting its Bid, that it has received all addenda issued and it shall acknowledge same in its Bid. 8.3 As noted in the Legal Advertisement, attendance by all bidders at the Pre-Bid Conference is non-mandatory. Section 9. Examination of Site and Contract Documents 9.1 By executing and submitting its Bid, each Bidder certifies that it has: a. Examined all Bidding Documents thoroughly; 7 16-6620 Clam Pass Dredging Packet Page -63- 3/22/2016 11.C. b. Visited the site to become familiar with local conditions that may in any manner affect performance of the Work; c. Become familiar with all federal, state and local laws, ordinances, rules, and regulations affecting performance of the Work; and d. Correlated all of its observations with the requirements of the Bidding documents. No plea of ignorance of conditions or difficulties that may exist or conditions or difficulties that may be encountered in the execution of the Work pursuant to these Bidding Documents as a result of failure to make the necessary examinations and investigations shall be accepted as an excuse for any failure or omission on the part of the Successful Bidder, nor shall they be accepted as a basis for any claims whatsoever for extra compensation or for an extension of time. 9.2 The Owner will make copies of surveys and reports performed in conjunction with this Project available to any Bidder requesting them at cost; provided, however, the Owner does not warrant or represent to any Bidder either the completeness or accuracy of any such surveys and reports. Before submitting its Bid, each Bidder shall, at its own expense, make such additional surveys and investigations as may be necessary to determine its Bid price for the performance of the Work within the terms of the Bidding Documents. This provision shall be subject to Section 2.3 of the General Conditions to the Agreement. Section 10. Material Requirements It is the intention of these Bidding Documents to identify standard materials. When space is provided on the Bid Schedule, Bidders shall specify the materials which they propose to use in the Project. The Owner may declare any Bid non-responsive or irregular if such materials are not specifically named by Bidder. Section 11. Bid Quantities 11.1 Quantities given in the Bid Schedule, while estimated from the best information available, are approximate only. Payment for unit price items shall be based on the actual number of units installed for the Work. Bids shall be compared on the basis of number of units stated in the Bid Schedule as set forth in the Bidding Documents. Said unit prices shall be multiplied by the bid quantities for the total Bid price. Any Bid not conforming to this requirement may be rejected. Special attention to all Bidders is called to this provision, because if conditions make it necessary or prudent to revise the unit quantities, the unit prices will be fixed for such increased or decreased quantities. Compensation for such additive or subtractive changes in the quantities shall be limited to the unit prices in the Bid. Subsequent to the issuance of a notice to proceed, the Project Manager and the Successful Bidder shall have the discretion to re-negotiate any unit price(s) where the actual quantity varies by more than twenty-five percent (25%)from the estimate at the time of bid. 11.2 Alternate Bid Pricing: In the event that alternate pricing is requested, it is an expressed requirement of the bid invitation to provide pricing for all alternates as listed. The omission of a response or a no-bid or lack of a submitted price may be the basis for the rejection of the submitted bid response. 8 16-6620 Clam Pass Dredging Packet Page -64- 3/22/2016 11.C. Section 12. Award of Contract 12.1 Any prospective bidder who desires to protest any aspect(s) or provision(s) of the bid invitation (including the form of the bid documents or bid procedures) shall file their protest with the Procurement Director prior to the time of the bid opening strictly in accordance with Owner's then current purchasing ordinance and policies. 12.2 Statement of Award: The Award of Contract shall be issued to the lowest, responsive and qualified Bidder determined by the base bid, and any, or all, selected alternates, and the Owner's investigations of the Bidder. In determining the lowest, responsive and qualified bidder, the Owner shall consider the capability of the Bidder to perform the contract in a timely and responsible manner. When the contract is awarded by Owner, such award shall be evidenced by a written Notice of Award, signed by a Purchasing professional of the Owner's Purchasing Department or his or her designee and delivered to the intended awardee or mailed to awardee at the business address shown in the Bid. 12.3 Award recommendations will be posted outside the offices of the Purchasing Department generally on Wednesdays or Thursdays prior to the presentation to the Board of County Commissioners. Award of Contract will be made by the Board of County Commissioners in public session. Any actual or prospective bidder who desires to formally protest the recommended contract award must file a notice of intent to protest with the Procurement Director within two (2) calendar days (excluding weekends and holidays) of the date that the recommended award is posted. Upon filing of said notice, the protesting party will have five (5) days to file a formal protest, said protest to strictly comply with Owner's then current purchasing ordinance and policies. A copy of the purchasing ordinance is available at '1 http://www.00llieroov.net/Index.aspx?pade=762. 12.4 For Bidders who may wish to receive copies of Bids after the Bid opening, The Owner reserves the right to recover all costs associated with the printing and distribution of such copies. 12.6 Certificate of Authority to Conduct Business in the State of Florida (Florida Statute 607.1501) In order to be considered for award, firms must be registered with the Florida Department of State Divisions of Corporations in accordance with the requirements of Florida Statute 607.1501 and provide a certificate of authority (www.sunbiz.orq/search.htmi) prior to execution of a contract. A copy of the document may be submitted with the solicitation response and the document number shall be identified. Firms who do not provide the certificate of authority at the time of response shall be required to provide same within five (5) days upon notification of selection for award. If the firm cannot provide the document within the referenced timeframe, the County reserves the right to award to another firm. Section 13. Sales Tax 13.1 The Successful Bidder acknowledges and agrees that Owner may utilize a sales tax savings program and the Successful Bidder agrees to fully comply, at no additional cost to Owner, with such sales tax savings program implemented by the Owner as set forth in the Agreement and in accordance with Owner's policies and procedures. 9 16-6620 Clam Pass Dredging Packet Page -65- 3/22/2016 11.C. Section 14. Exclusion of County Permits in Bid Prices 14.1 To ensure compliance with Section 218.80, F.S., otherwise known as "The Public Bid Disclosure Act", Collier County will pay the Contractor for all Collier County permits and fees applicable to the Project, including license fees, permit fees, impact fees or inspection fees applicable to this Work through an internal budget transfer(s). Hence, bidders shall not include these permit/fee amounts in their bid offer. However, the Successful Bidder shall retain the responsibility to initiate and complete all necessary and appropriate actions to obtain the required permits other than payment for the items identified in this section. Owner will not be obligated to pay for any permits obtained by Subcontractors. 14.2 The Successful Bidder shall be responsible for procuring and paying for all necessary permits not issued by Collier County pursuant to the prosecution of the work. Section 15. Use of Subcontractors 15.1 To ensure the Work contemplated by the Contract Documents is performed in a professional and timely manner, all Subcontractors performing any portion of the work on this Project shall be "qualified" as defined in Collier County Ordinance 2013-69, meaning a person or entity that has the capability in all respects to perform fully the Agreement requirements and has the integrity and reliability to assure good faith performance. A Subcontractor's disqualification from bidding by the Owner, or other public contracting entity within the past twelve months shall be considered by the Owner when determining whether the Subcontractors are "qualified." 15.2 The Owner may consider the past performance and capability of a Subcontractor when evaluating the ability, capacity and skill of the Bidder and its ability to perform the Agreement within the time required. Owner reserves the right to disqualify a Bidder who includes Subcontractors in its bid offer which are not "qualified" or who do not meet the legal requirements applicable to and necessitated by this Agreement. 15.3 The Owner may reject all bids proposing the use of any subcontractors who have been disqualified from submitting bids to the Owner, disqualified or de-certified for bidding purposes by any public contracting entity, or who has exhibited an inability to perform through any other means. 15.4 Notwithstanding anything in the Contract Documents to the contrary, the Bidder shall identify the subcontractor(s) it intends to use for the categories of work as set forth in the List of Subcontracts attached hereto, said list to be submitted with its bid. Bidders acknowledge and agree that the subcontractors identified on the list is not a complete list of the subcontractors to be used on the Project, but rather only the major subcontractors for each category of Work as established by Owner. Bidders further acknowledge that once there is an Award of Contract, the Successful Bidder shall identify, subject to Owner's review and approval, all the subcontractors it intends to use on the Project. Once approved by Owner, no subcontractor shall be removed or replaced without Owner's prior written approval. Section 16. Prohibition of Gifts No organization or individual shall offer or give, either directly or indirectly, any favor, gift, loan, fee, service or other item of value to any County employee, as set forth in Chapter 112, Part Ill, 10 16-6620 Clam Pass Dredging Packet Page -66- 3/22/2016 11.C. Florida Statutes, Collier County Ethics Ordinance No. 2004-05, and County Administrative Procedure 5311. Violation of this provision may result in one or more of the following consequences: a. Prohibition by the individual, firm, and/or any employee of the firm from contact with County staff for a specified period of time; b. Prohibition by the individual and/or firm from doing business with the County for a specified period of time, including but not limited to: submitting bids, RFP, and/or quotes; and, c. immediate termination of any contract held by the individual and/or firm for cause. Section 17. Lobbying All firms are hereby placed on NOTICE that the Board of County Commissioners does not wish to be lobbied, either individually or collectively about a project for which a firm has submitted a response. Firms and their agents are not to contact members of the County Commission for such purposes as meeting or introduction, luncheons, dinners, etc. During the process, from solicitation closing to final Board approval, no firm or their agent shall contact any other employee of Collier County in reference to this solicitation, or the vendor's response, with the exception of the Procurement Director or his designee(s). Failure to abide by this provision may serve as grounds for disqualification for award of this contract to the firm. Section 18. Public Entity Crimes By its submitting a Bid, Bidder acknowledges and agrees to and represents it is in compliance with the terms of Section 287.133(2)(a) of the Florida Statutes which read as follows: r1 "A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime 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 contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." 11 16-6620 Clam Pass Dredging Packet Page -67- 3/22/2016 11 .C. CONSTRUCTION BID BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Clam Pass Dredging BID NO. 16-6620 Full Name of Bidder Main Business Address Place of Business Telephone No. Fax No. State Contractor's License# State of Florida Certificate of Authority Document Number Federal Tax Identification Number DUNS # CCR# Cage Code To: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA (hereinafter called the Owner) The undersigned, as Bidder declares that the only person or parties interested in this Bid as principals are those named herein, that this Bid is submitted without collusion with any other person, firm or corporation; that it has carefully examined the location of the proposed Work, the proposed form of Agreement and all other Contract Documents and Bonds, and the Contract Drawings and Specifications. Bidder proposes, and agrees if this Bid is accepted, Bidder will execute the Agreement included in the Bidding Documents, to provide all necessary machinery, tools, apparatus and other means of construction, including utility and transportation services necessary to do all the Work, and furnish all the materials and equipment specified or referred to in the Contract Documents in the manner and time herein prescribed and according to the requirements of the Owner as therein set forth, furnish the Contractor's Bonds and Insurance specified in the General Conditions of the Contract, and to do all other things required of the Contractor by the Contract Documents, and that it will take full payment the sums set forth in the following Bid Schedule: Unit prices shall be provided in no more than two decimal points, and in the case where further decimal points are inadvertently provided, rounding to two decimal points will be conducted by Purchasing staff. NOTE: If you choose to bid, please submit an ORIGINAL and ONE COPY of your bid pages. 12 16-6620 Clam Pass Dredging Packet Page -68- 3/22/2016 11.C. BID SCHEDULE Clam Pass Dredging Bid No. 16-6620 ***For award purposes only*** Unit of Item Description Measure Multiplier+ Unit Price Total 1 Mobilization &Demobilization Lump Sum 1 2 Dredging and Disposal/Placement Cubic Yard 18,500 of Sand * 3 Turbidity Monitoring Lump Sum 1 4 Construction Survey Each 4 5 Bond** Lump Sum 1 6 Total * Exact quantity of sand to be dredged and placed is expected to be between 15,000 and 22,000 cubic yards. An exact number will be provided when the finalized plans are available. ** Bidder should quote price of bonding with the assumption that the contract will be for the full 22,000 cubic yards of dredging, unless an exact quantity is provided at a later date. + The multiplier in this bid schedule is for award purposes only. The actual amount of sand to be dredged and placed will be provided when the finalized plans are provided by the engineer. Please state the shortest amount of time your firm can complete this project (in days). 13 16-6620 Clam Pass Dredging Packet Page -69- 3/22/2016 11 .C. MATERIAL MANUFACTURERS THIS FORM MUST BE COMPLETED OR BID SHALL BE DEEMED NON-RESPONSIVE All Bidders shall confirm by signature that they will provide the manufacturers and materials outlined in this Bid specifications, including compliance with Florida Statute 255.20 to provide lumber, timber and other forest products produced and manufactured in the State of Florida as long as the price, fitness and quality are equal. Exceptions (when equals are acceptable) may be requested by completing the Material Manufacturer Exception List below. If an exception for a manufacturer and/or material is proposed and listed below and is not approved by Engineer/Project Manager, Bidder shall furnish the manufacturer named in the specification. Acceptance of this form does not constitute acceptance of material proposed on this list. Complete and sign section A OR B. Section A (Acceptance of all manufactures and materials in Bid specifications) On behalf of my firm, I confirm that we will use all manufacturers and materials as specifically outlined in the Bid specifications. Company: Signature: Date: Section B (Exception requested to Bid specifications manufacturers and materials) EXCEPTION MATERIAL EXCEPTION MANUFACTURER 1. 2. 3. 4. 5. Please insert additional pages as necessary. Company; - Signature: Date 14 16-6620 Clam Pass Dredging Packet Page -70- 3/22/2016 11.C. LIST OF MAJOR SUBCONTRACTORS THIS LIST MUST BE COMPLETED OR BID MAY BE DEEMED NON-RESPONSIVE The undersigned states that the following is a list of the proposed subcontractors for the major categories outlined in the requirements of the Bid specifications. The undersigned acknowledges its responsibility for ensuring that the Subcontractors for the major categories listed herein are "qualified" (as defined in Ordinance 2013-69 and Section 15 of Instructions to Bidders) and meet all legal requirements applicable to and necessitated by the Contract Documents, including, but not limited to proper licenses, certifications, registrations and insurance coverage. The Owner reserves the right to disqualify any Bidder who includes non-compliant or non-qualified Subcontractors in its bid offer. Further, the Owner may direct the Successful Bidder to remove/replace any Subcontractor, at no additional cost to Owner, which is found to be non-compliant with this requirement either before or after the issuance of the Award of Contract by Owner. (Attach additional sheets as needed). Further, the undersigned acknowledges and agrees that promptly after the Award of Contract, and in accordance with the requirements of the Contract Documents, the Successful Bidder shall identify all Subcontractors it intends to use on the Project. The undersigned further agrees that all Subcontractors subsequently identified for any portion of work on this Project must be qualified as noted above. Major Category of Work Subcontractor and Address 1. Electrical 2. Mechanical 3. Plumbing 4. Site Work 5. Identify other subcontractors that represent more than 10% of price or that affect the critical path of the schedule Company: Signature: Date: /""'■ 15 16-6620 Clam Pass Dredging Packet Page -71- 3/22/2016 11 .C. STATEMENT OF EXPERIENCE OF BIDDER The Bidder is required to state below what work of similar magnitude completed within the last five years is a judge of its experience, skill and business standing and of its ability to conduct the work as completely and as rapidly as required under the terms of the Agreement. Project and Location Reference 1. 2. 3. 4. 5. 6. Company: Signature: Date: • 16 16-6620 Clam Pass Dredging Packet Page -72- 3/22/2016 11 .C. TRENCH SAFETY ACT Bidder acknowledges that included in the various items of the bid and in the Total Bid Price are costs for complying with the Florida Trench Safety Act (90-96, Laws of Florida) effective October 1, 1990. The Bidder further identifies the cost to be summarized below: Trench Safety Units of Unit Unit Extended Measure Measure (Quantity) Cost Cost (Description) (LF,SY) 1. . 2. 3. 4. 5. TOTAL$ Failure to complete the above may result in the Bid being declared non-responsive. Company: Signature: Date: 17 16-6620 Clam Pass Dredging Packet Page -73- 3/22/2016 11.C. Co aer County Administrative Services Department Procurement Services Division Immigration Law Affidavit Certification Solicitation: 16-6620—Clam Bay Dredging This Affidavit is required and should be signed, notarized by an authorized principal of the firm and submitted with formal Invitations to Bid (ITB's)and Request for Proposals (RFP)submittals. Further, Vendors/Bidders are required to enroll in the E-Verify program, and provide acceptable evidence of their enrollment, at the time of the submission of the vendor's/bidder's proposal. Acceptable evidence consists of a copy of the properly completed E-Verify Company Profile page or a copy of the fully executed E-Verify Memorandum of Understanding for the company. Failure to include this Affidavit and acceptable evidence of enrollment in the E-Verify program, may deem the Vendor/ Bidder's proposal as non-responsive. Collier County will not intentionally award County contracts to any vendor who knowingly employs unauthorized alien workers, constituting a violation of the employment provision contained in 8 U.S.C. Section 1324 a(e) Section 274A(e) of the Immigration and Nationality Act("INA"). Collier County may consider the employment by any vendor of unauthorized aliens a violation of Section 274A(e)of the INA. Such Violation by the recipient of the Employment Provisions contained in Section 274A(e)of the INA shall be grounds for unilateral termination of the contract by Collier County. Vendor attests that they are fully compliant with all applicable immigration laws (specifically to the 1986 Immigration Act and subsequent Amendment(s))and agrees to comply with the provisions of the Memorandum of Understanding with E-Verify and to provide proof of enrollment in The Employment Eligibility Verification System (E-Verify), operated by the Department of Homeland Security in partnership with the Social Security Administration at the time of submission of the Vendor's/Bidder's proposal. Company Name Print Name Title Signature Date State of County of The foregoing instrument was signed and acknowledged before me this day of 20_, by (print or type name)who has produced (type of identification and number) as identification. Notary Public Signature Printed Name of Notary Public Notary Commission Number/Expiration The signee of this Affidavit guarantees, as evidenced by the sworn affidavit required herein, the truth and accuracy of this affidavit to interrogatories hereinafter made. 18 16-6620 Clam Pass Dredging Packet Page -74- 3/22/2016 11.C. Copier County Administrative Services Department Procurement Services Division COLLIER COUNTY SOLICITATIONS SUBSTITUTE W—9 Request for Taxpayer Identification Number and Certification In accordance with the Internal Revenue Service regulations, Collier County is required to collect the following information for tax reporting purposes from individuals and companies who do business with the County (including social security numbers if used by the individual or company for tax reporting purposes). Florida Statute 119.071(5) require that the county notify you in writing of the reason for collecting this information, which will be used for no other purpose than herein stated. Please complete all information that applies to your business and return with your quote or proposal. 1. General Information (provide all information) Taxpayer Name (as shown on income tax return) Business Name (if different from taxpayer name) Address City State Zip Telephone FAX Email Order Information Remit/Payment Information Address Address City State Zip City State Zip FAX FAX Email Email 2. Company Status (check only one) Individual!Sole Proprietor _Corporation Partnership Tax Exempt(Federal income tax-exempt entity Limited Liability Company under Internal Revenue Service guidelines IRC 501 (c)3) Enter the tax classification (D=Disregarded Entity, C=Corporation, P=Partnership) 3. Taxpayer Identification Number(for tax reporting purposes only) Federal Tax Identification Number(TIN) (Vendors who do not have a TIN,will be required to provide a social security number prior to an award of the contract.) 4. Sign and Date Form Certification: Under penalties of perjury, I certify that the information shown on this form is correct to my knowledge. Signature Date Title Phone Number 19 16-6620 Clam Pass Dredging Packet Page -75- 3/22/2016 11 .C. Upon notification that its Bid has been awarded, the Successful Bidder will execute the Agreement form attached to the Bidding Documents within ten (10) calendar days and deliver the Surety Bond or Bonds and Insurance Certificates as required by the Contract Documents. The bid security attached is to become the property of the Owner in the event the Agreement, Insurance Certificates and Bonds are not executed and delivered to Owner within the time above set forth, as liquidated damages, for the delay and additional expense to the Owner, it being recognized that, since time is of the essence, Owner will suffer financial loss if the Successful Bidder fails to execute and deliver to Owner the required Agreement, Insurance Certificates and Bonds within the required time period. In the event of such failure, the total amount of Owner's damages, will be difficult, if not impossible, to definitely ascertain and quantify. It is hereby agreed that it is appropriate and fair that Owner receive liquidated damages from the Successful Bidder in the event it fails to execute and deliver the Agreement, Insurance Certificates, and Bonds as required hereunder. The Successful Bidder hereby expressly waives and relinquishes any right which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of Owner's actual damages at the time of bidding if the Successful Bidder fails to execute and deliver the Agreement, Insurance Certificates, and Bonds in a timely manner. Upon receipt of the Notice of Award, the undersigned proposes to commence work at the site within five (5) calendar days from the commencement date stipulated in the written Notice to Proceed unless the Project Manager, in writing, subsequently notifies the Contractor of a modified (later) commencement date. The undersigned further agrees to substantially complete all work covered by this Bid within twenty-one (21) consecutive calendar days, computed by excluding the commencement date and including the last day of such period, and to be fully completed to the point of final acceptance by the Owner within seven (7) consecutive calendar days after Substantial Completion, computed by excluding commencement date and including the last day of such period. Respectfully Submitted: State of County of , being first duly sworn on oath deposes and says that the Bidder on the above Bid is organized as indicated and that all statements herein made are made on behalf of such Bidder and that this deponent is authorized to make them. , also deposes and says that it has examined and carefully prepared its Bid from the Bidding Documents, including the Contract Drawings and Specifications and has checked the same in detail before submitting this Bid; that the statements contained herein are true and correct. (a) Corporation The Bidder is a corporation organized and existing under the laws of the State of which operates under the legal name of , and the full names of its officers are as follows: President Secretary Treasurer Manager 20 16-6620 Clam Pass Dredging Packet Page -76- 3/22/2016 11.C. The is authorized to sign construction bids and contracts for the company by action of its Board of Directors taken , a certified copy of which is hereto attached (strike out this last sentence if not applicable). (b) Co-Partnership The Bidder is a co-partnership consisting of individual partners whose full names are as follows: The co-partnership does business under the legal name of: (c) Individual The Bidder is an individual whose full name is , and if operating under a trade name, said trade name is Complete for information contained in (a) Corporation, (b) Co-Partnership or (c) Individual from previous page. DATED legal entity BY: Witness Name of Bidder (Typed) Witness Signature Title 21 16-6620 Clam Pass Dredging Packet Page -77- 3/22/2016 11 .C. STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 , by as of , a corporation, on behalf of the corporation. He/she is personally known to me or has produced as identification and did (did not)take an oath. My Commission Expires: (Signature of Notary) NAME: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commission No.: 22 16-6620 Clam Pass Dredging Packet Page -78- 3/22/2016 11 .C. BID BOND KNOW ALL MEN BY THESE PRESENTS, that we (herein after called the Principal) and (herein called the Surety), a corporation chartered and existing under the laws of the State of with its principal offices in the city of and authorized to do business in the State of are held and firmly bound unto the (hereinafter called the Owner), in the full and just sum of dollars ($ ) good and lawful money of the United States of America, to be paid upon demand of the Owner, to which payment well and truly to be made, the Principal and the Surety bind themselves, their heirs, and executors, administrators, and assigns, jointly and severally and firmly by these presents. Whereas, the Principal is about to submit, or has submitted to the Owner, a Bid for furnishing all labor, materials, equipment and incidentals necessary to furnish, install, and fully complete the Work on the Project known as Clam Pass Dredging Bid No. 16-6620 NOW, THEREFORE, if the Owner shall accept the Bid of the PRINCIPAL and the PRINCIPAL shall enter into the required Agreement with the Owner and within ten days after the date of a written Notice of Award in accordance with the terms of such Bid, and give such bond or bonds in an amount of 100% the total Contract Amount as specified in the Bidding Documents or Contract Documents with good and sufficient surety for the faithful performance of the Agreement and for the prompt payment of labor, materials and supplies furnished in the prosecution thereof or, in the event of the failure of the PRINCIPAL to enter into such Agreement or to give such bond or bonds, and deliver to Owner the required certificates of insurance, if the PRINCIPAL shall pay to the OBLIGEE the fixed sum of $ noted above as liquidated damages, and not as a penalty, as provided in the Bidding Documents, then this obligation shall be null and void, otherwise to remain in full force and effect. 23 16-6620 Clam Pass Dredging Packet Page -79- 3/22/2016 11.C. IN TESTIMONY Thereof, the Principal and Surety have caused these presents to be duly signed and sealed this day of , 20 Principal BY (Seal) Surety (Seal) Countersigned Local Resident Producing Agent for 24 16-6620 Clam Pass Dredging Packet Page -80- 3/22/2016 11 .C. THIS SHEETMUST BE SIGNED BY VENDOR BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Purchasing Department BIDDERS CHECK LIST IMPORTANT: Please read carefully, sign in the spaces indicated and return with your Bid. Bidder should check off each of the following items as the necessary action is completed: 1. The Bid has been signed. 2. The Bid prices offered have been reviewed. 3. The price extensions and totals have been checked. 4. Any required drawings, descriptive literature, etc. have been included. 5. Any delivery information required is included. 6. Immigration Affidavit completed and the company's E-Verify profile page or memorandum of understanding 7. Certificate of Authority to Conduct Business in State of Florida and the County's Substitute W9 8. If required, the amount of Bid bond has been checked, and the Bid bond or cashier's check has been included. 9. Any addenda have been signed and included. 10. The mailing envelope has been addressed to: Procurement Director Collier County Government Purchasing Department 3327 Tamiami Trail E Naples FL 34112 11. The mailing envelope must be sealed and marked with: 16-6620 Clam Pass Dredging 03/23/2016; 3:00PM 12. The Bid will be mailed or delivered in time to be received no later than the specified opening date and time, otherwise Bid cannot be considered. 13. If submitting a manual bid, include any addenda (initialed and dated noting understanding and receipt). If submitting bid electronically, bidder will need to download all related documents on www.colliergov.net/bid. The system will date and time stamp when the addendum files were downloaded. ALL COURIER-DELIVERED BIDS MUST HAVE THE BID NUMBER AND PROJECT NAME ON THE OUTSIDE OF THE COURIER PACKET Bidder Name Date Signature &Title 25 16-6620 Clam Pass Dredging Packet Page -81- 3/22/2016 11 .C. CONSTRUCTION AGREEMENT THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, ("Owner") hereby contracts with 32 ("Contractor") of 33, a 34,authorized to do business in the State of Florida, to perform all work ("Work") in connection with Clam Pass Dredging, Bid No. 16-6620("Project"), as said Work is set forth in the Plans and Specifications prepared by Humiston & Moore Engineers, the Engineer and/or Architect of Record ("Design Professional") and other Contract Documents hereafter specified. Owner and Contractor, for the consideration herein set forth, agree as follows: Section 1. Contract Documents. A. The Contract Documents consist of this Agreement, the Exhibits described in Section 6 hereof, the Legal Advertisement, the Bidding Documents and any duly executed and issued addenda, Change Orders, Work Directive Changes, Field Orders and amendments relating thereto. All of the foregoing Contract Documents are incorporated by reference and made a part of this Agreement (all of said documents including the Agreement sometimes being referred to herein as the "Contract Documents" and sometimes as the "Agreement" and sometimes as the "Contract"). A copy of the Contract Documents shall be maintained by Contractor at the Project site at all times during the performance of the Work. B. Owner shall furnish to the Contractor one reproducible set of the Contract Documents and the appropriate number of sets of the Construction Documents, signed and sealed by the Design Professional, as are reasonably necessary for permitting. Section 2. Scope of Work. Contractor agrees to furnish and pay for all management, supervision, financing, labor, materials, tools, fuel, supplies, utilities, equipment and services of every kind and type necessary to diligently, timely, and fully perform and complete in a good and workmanlike manner the Work required by the Contract Documents. Section 3. Contract Amount. In consideration of the faithful performance by Contractor of the covenants in this Agreement to the full satisfaction and acceptance of Owner, Owner agrees to pay, or cause to be paid, to Contractor the following amount (herein "Contract Amount"), in accordance with the terms of this Agreement: Amount of Dollars Described in Words (Dollars in Numbers) 38 Section 4. Bonds. A. Contractor shall provide Performance and Payment Bonds, in the form prescribed in Exhibit A, in the amount of 100% of the Contract Amount, the costs of which are to be paid by Contractor. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to Owner; provided, however, the surety shall meet the requirements of the Department of the Treasury Fiscal Service, "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies" circular. This circular may be accessed via the web at www.fms.treas.gov/c570/c570.html#certified. Should the Contract Amount be less than 26 16-6620 Clam Pass Dredging Packet Page -82- 3/22/2016 11 .C. $500,000, the requirements of Section 287.0935, F.S. shall govern the rating and classification of the surety. B. If the surety for any bond furnished by Contractor is declared bankrupt, becomes insolvent, its right to do business is terminated in the State of Florida, or it ceases to meet the requirements imposed by the Contract Documents, the Contractor shall, within five (5) calendar days thereafter, substitute at its cost and expense another bond and surety, both of which shall be subject to the Owner's approval. Section 5. Contract Time and Liquidated Damages. A. Time of Performance. Time is of the essence in the performance of the Work under this Agreement. The "Commencement Date" shall be established in the written Notice to Proceed to be issued by the Project Manager, as hereinafter defined. Contractor shall commence the Work within five (5) calendar days from the Commencement Date. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by Contractor prior to the Commencement Date shall be at the sole risk of Contractor. Contractor shall achieve Substantial Completion within twenty-one (21) calendar days from the Commencement Date (herein "Contract Time"). The date of Substantial Completion of the Work (or designated portions thereof) is the date certified by the Design Professional when construction is sufficiently complete, in accordance with the Contract Documents, so Owner can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended. Contractor shall achieve Final Completion within seven (7) calendar days after the date of Substantial Completion. Final Completion shall occur when the Agreement is completed in its entirety, is accepted by the Owner as complete and is so stated by the Owner as completed. As used herein and throughout the Contract Documents, the phrase "Project Manager" refers to the Owner's duly authorized representative and shall mean the Division Administrator or Department Director, as applicable, acting directly or through duly authorized representatives. B. Liquidated Damages in General. Owner and Contractor recognize that, since time is of the essence for this Agreement, Owner will suffer financial loss if Contractor fails to achieve Substantial Completion within the time specified above, as said time may be adjusted as provided for herein. In such event, the total amount of Owner's damages, will be difficult, if not impossible, to definitely ascertain and quantify. Should Contractor fail to achieve Substantial Completion within the number of calendar days established herein, Owner shall be entitled to assess, as liquidated damages, but not as a penalty, two thousand, five hundred ($2,500.00) for each calendar day thereafter until Substantial Completion is achieved. Further, in the event Substantial Completion is reached, but the Contractor fails to reach Final Completion within the required time period, Owner shall also be entitled to assess and Contractor shall be liable for all actual damages incurred by Owner as a result of Contractor failing to timely achieve Final Completion. The Project shall be deemed to be substantially completed on the date the Project Manager (or at his/her direction, the Design Professional) issues a Certificate of Substantial Completion pursuant to the terms hereof. Contractor hereby expressly waives and relinquishes any right which it may have to seek to characterize the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the Owner's actual damages at the time of contracting if Contractor fails to Substantially or Finally Complete the Work within the required time periods. 27 16-6620 Clam Pass Dredging Packet Page -83- 3/22/2016 11 .C. C. Computation of Time Periods. When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday. D. Determination of Number of Days of Default. For all contracts, regardless of whether the Contract Time is stipulated in calendar days or working days, the Owner will count default days in calendar days. E. Right of Collection. The Owner has the right to apply any amounts due Contractor under this Agreement or any other agreement between Owner and Contractor, as payment on such liquidated damages due under this Agreement in Owner's sole discretion. Notwithstanding anything herein to the contrary, Owner retains its right to liquidated damages due under this Agreement even if Contractor, at Owner's election and in its sole discretion, is allowed to continue and to finish the Work, or any part of it, after the expiration of the Contract Time including granted time extensions. F. Completion of Work by Owner. In the event Contractor defaults on any of its obligations under the Agreement and Owner elects to complete the Work, in whole or in part, through another contractor or its own forces, the Contractor and its surety shall continue to be liable for the liquidated damages under the Agreement until Owner achieves Substantial and Final Completion of the Work. Owner will not charge liquidated damages for any delay in achieving Substantial or Final Completion as a result of any unreasonable action or delay on the part of the Owner. G. Final Acceptance by Owner. The Owner shall consider the Agreement complete when the Contractor has completed in its entirety all of the Work and the Owner has accepted all of the Work and notified the Contractor in writing that the Work is complete. Once the Owner has approved and accepted the Work, Contractor shall be entitled to final payment in accordance with the terms of the Contract Documents. H. Recovery of Damages Suffered by Third Parties. Contractor shall be liable to Owner to the extent Owner incurs damages from a third party as a result of Contractor's failure to fulfill all of its obligations under the Contract Documents. Owner's recovery of any delay related damages under this Agreement through the liquidated damages does not preclude Owner from recovering from Contractor any other non-delay related damages that may be owed to it arising out of or relating to this Agreement. Section 6. Exhibits Incorporated. Exhibits Incorporated: The following documents are expressly agreed to be incorporated by reference and made a part of this Agreement for Solicitation 16-6620— Clam Pass Dredging. Exhibit A: Performance and Payment Bond Forms Exhibit B: Insurance Requirements Exhibit C: Release and Affidavit Form 28 16-6620 Clam Pass Dredging Packet Page -84- 3/22/2016 11 .C. Exhibit D: Contractor Application for Payment Form Exhibit E: Change Order Form Exhibit F: Certificate of Substantial Completion Form Exhibit G: Final Payment Checklist Exhibit H: General Terms and Conditions Exhibit I: Supplemental Terms.and Conditions Exhibit J: Technical Specifications Exhibit K: Permits Exhibit L: Standard Details (if applicable) Exhibit M: Plans and Specifications prepared by Humiston & Moore Engineers and identified as follows: Exhibit M —Clam Pass Dredging Permit Plans as shown on Plan Sheets 1 through 12. Exhibit N: Contractor's List of Key Personnel Section 7. Notices A. All notices required or made pursuant to this Agreement by the Contractor to the Owner shall be shall be deemed duly served if delivered by U.S. Mail, E-mail or Facsimile, addressed to the following: Neil Dorril, Administrator Pelican Bay Services Division of Collier County 801 Laurel Oak Dr., Suite 302 Naples, FL 34108 Phone: 239-597-1749 Fax: 239-597-4502 Email: Neil @dmgfl.com B. All notices required or made pursuant to this Agreement by Owner to Contractor shall be made in writing and shall be deemed duly served if delivered by U.S. Mail, E-mail or Facsimile, addressed to the following: 45 C. Either party may change its above noted address by giving written notice to the other party in accordance with the requirements of this Section. Section 8. PUBLIC ENTITY CRIMES. l 8.1 By its execution of this Contract, Construction Contractor acknowledges that it has been informed by Owner of the terms of Section 287.133(2)(a) of the Florida Statutes which read as follows: "A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant 29 16-6620 Clam Pass Dredging Packet Page -85- 3/22/2016 11.C. under a contract with any public entity in excess of the threshold amount provided in s. 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." Section 9. Modification. No modification or change to the Agreement shall be valid or binding upon the parties unless in writing and executed by the party or parties intended to be bound by it. Section 10. Successors and Assigns. Subject to other provisions hereof, the Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the Agreement. Section 11. Governing Law. The Agreement shall be interpreted under and its performance governed by the laws of the State of Florida. Section 12. No Waiver. The failure of the Owner to enforce at any time or for any period of time any one or more of the provisions of the Agreement shall not be construed to be and shall not be a waiver of any such provision or provisions or of its right thereafter to enforce each and every such provision. Section 13. Entire Agreement. Each of the parties hereto agrees and represents that the Agreement comprises the full and entire agreement between the parties affecting the Work contemplated, and no other agreement or understanding of any nature concerning the same has been entered into or will be recognized, and that all negotiations, acts, work performed, or payments made prior to the execution hereof shall be deemed merged in, integrated and superseded by the Agreement. Section 14. Severability. Should any provision of the Agreement be determined by a court to be unenforceable, such a determination shall not affect the validity or enforceability of any other section or part thereof. Section 15. Change Order Authorization. The Project Manager shall have the authority on behalf of the Owner to execute all Change Orders and Work Directive Changes to the Agreement to the extent provided for under the Owner's purchasing ordinance and policies and accompanying administrative procedures. Section 16. Construction. Any doubtful or ambiguous language contained in this Agreement shall not be construed against the party who physically prepared this Agreement. The rule sometimes referred to as "fortius contra proferentum" (pursuant to which ambiguities in a contractual term which appears on its 30 16-6620 Clam Pass Dredging Packet Page -86- 3/22/2016 11 .C. face to have been inserted for the benefit of one of the parties shall be construed against the benefited party) shall not be applied to the construction of this Agreement. Section 17. Order of Precedence In the event of any conflict between or among the terms of any of the Contract Documents, the terms of the Construction Agreement and the General Terms and Conditions shall take precedence over the terms of all other Contract Documents, except the terms of any Supplemental Conditions shall take precedence over the Construction Agreement and the General Terms and Conditions. To the extent any conflict in the terms of the Contract Documents including the Owner's Board approved Executive Summary cannot be resolved by application of the Supplemental Conditions, if any, or the Construction Agreement and the General Terms and Conditions, the conflict shall be resolved by imposing the more strict or costly obligation under the Contract Documents upon the Contractor at Owner's discretion. 31 16-6620 Clam Pass Dredging Packet Page -87- 3/22/2016 11.C. IN WITNESS WHEREOF, the parties have executed this Agreement on the date(s) indicated below. CONTRACTOR: TWO WITNESSES: 46 By: FIRST WITNESS Print Name and Title Date Print Name SECOND WITNESS Print Name Date: OWNER: ATTEST: BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY FLORIDA Dwight E. Brock, Clerk BY: BY: Donna Fiala Date Chairman Approved as to Form and Legality: Assistant County Attorney Print.Name 32 16-6620 Clam Pass Dredging Packet Page -88- 3/22/2016 11.C. EXHIBIT A 1: PUBLIC PAYMENT BOND Clam Pass Dredging Bond No. Contract No. 16-6620 KNOW ALL MEN BY THESE PRESENTS: That , as Principal, and , as Surety, located at (Business Address) are held and firmly bound to as Obligee in the sum of ($ ) for the payment whereof we bind ourselves, our heirs, executors, personal representatives, successors and assigns, jointly and severally. WHEREAS, Principal has entered into a contract dated as of the day of 20 , with Obligee for in accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to herein as the Contract. THE CONDITION OF THIS BOND is that if Principal: Promptly makes payment to all claimants as defined in Section 255.05(1), Florida Statutes, supplying Principal with labor, materials or supplies, used directly or indirectly by Principal in the prosecution of the work provided for in the Contract, then this bond is void; otherwise it remains in full force. Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Sureties obligation under this Bond. The provisions of this bond are subject to the time limitations of Section 255.05(2). In no event will the Surety be liable in the aggregate to claimants for more than the penal sum of this Payment Bond, regardless of the number of suits that may be filed by claimants. IN WITNESS WHEREOF, the above parties have executed this instrument this day of 20 , the name of each party being affixed and these presents duly signed by its under-signed representative, pursuant to authority of its governing body. 33 16-6620 Clam Pass Dredging Packet Page -89- 3/22/2016 11 .C. Signed, sealed and delivered in the presence of: PRINCIPAL BY: Witnesses as to Principal NAME: ITS: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 20 by , as of , a corporation, on behalf of the corporation. He/she is personally known to me OR has produced as identification and did (did not)take an oath. My Commission Expires: (Signature of Notary) NAME: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commission No.: ATTEST: SURETY: (Printed Name) (Business Address (Authorized Signature) Witnesses to Surety (Printed Name) 34 16-6620 Clam Pass Dredging Packet Page -90- 3/22/2016 11.C. OR As Attorney in Fact (Attach Power of Attorney) Witnesses (Printed Name) (Business Address) (Telephone Number) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 , by , as of Surety, on behalf of Surety. He/She is personally known to me OR has produced as identification and who did (did not) take an oath. My Commission Expires: (Signature) Name: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of: Commission No.: 35 16-6620 Clam Pass Dredging Packet Page -91- 3/22/2016 11 .C. EXHIBIT A 2: PUBLIC PERFORMANCE BOND Clam Pass Dredging Bond No. Contract No. 16-6620 KNOW ALL MEN BY THESE PRESENTS: That , as Principal, and as Surety, located at (Business Address) are held and firmly bound to , as Obligee in the sum of ($ ) for the payment whereof we bond ourselves, our heirs, executors, personal representatives, successors and assigns,jointly and severally. WHEREAS, Principal has entered into a contract dated as of the day of 20 , with Obligee for in accordance with drawings and specifications, which contract is incorporated by reference and made a part hereof, and is referred to herein as the Contract. THE CONDITION OF THIS BOND is that if Principal: 1. Performs the Contract at the times and in the manner prescribed in the Contract; and 2. Pays Obligee any and all losses, damages, costs and attorneys' fees that Obligee sustains because of any default by Principal under the Contract, including, but not limited to, all delay damages, whether liquidated or actual, incurred by Obligee; and 3. Performs the guarantee of all work and materials furnished under the Contract for the time specified in the Contract, then this bond is void; otherwise it remains in full force. Any changes in or under the Contract and compliance or noncompliance with any formalities connected with the Contract or the changes do not affect Sureties obligation under this Bond. The Surety, for value received, hereby stipulates and agrees that no changes, extensions of time, alterations or additions to the terms of the Contract or other work to be performed hereunder, or the specifications referred to therein shall in anywise affect its obligations under this bond, and it does hereby waive notice of any such changes, extensions of time, alterations or additions to the terms of the Contract or to work or to the specifications. This instrument shall be construed in all respects as a common law bond. It is expressly understood that the time provisions and statute of limitations under Section 255.05, Florida Statutes, shall not apply to this bond. In no event will the Surety be liable in the aggregate to Obligee for more than the penal sum of this Performance Bond regardless of the number of suits that may be filed by Obligee. IN WITNESS WHEREOF, the above parties have executed this instrument this day of , 20 , the name of each party being affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body. 36 16-6620 Clam Pass Dredging Packet Page -92- 3/22/2016 11 .C. Signed, sealed and delivered in the presence of: PRINCIPAL BY: Witnesses as to Principal NAME: ITS: STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 20 , by , as of , a corporation, on behalf of the corporation. He/she is personally known to me OR has produced as identification and did (did not)take an oath. My Commission Expires: (Signature) Name: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of: Commission No.: II III 37 16-6620 Clam Pass Dredging Packet Page -93- 3/22/2016 11 .C. ATTEST: SURETY: (Printed Name) (Business Address) (Authorized Signature) Witnesses as to Surety (Printed Name) OR As Attorney in Fact (Attach Power of Attorney) Witnesses (Printed Name) (Business Address) (Telephone Number) STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of 20 , by , as of , a Surety, on behalf of Surety. He/She is personally known to me OR has produced as identification and who did (did not)take an oath. My Commission Expires: (Signature) Name: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of: Commission No.: 38 16-6620 Clam Pass Dredging Packet Page -94- 3/22/2016 11 .C. EXHIBIT B: INSURANCE REQUIREMENTS The Vendor shall at its own expense, carry and maintain insurance coverage from responsible companies duly authorized to do business in the State of Florida as set forth in EXHIBIT B of this solicitation. The Vendor shall procure and maintain property insurance upon the entire project, if required, to the full insurable value of the scope of work. The County and the Vendor waive against each other and the County's separate Vendors, Contractors, Design Consultant, Subcontractors, agents and employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. The Vendor and County shall, where appropriate, require similar waivers of subrogation from the County's separate Vendors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their contracts. Collier County shall be responsible for purchasing and maintaining its own liability insurance. Certificates issued as a result of the award of this solicitation must identify "For any and all work performed on behalf of Collier County", or, the specific solicitation number and title. The General Liability Policy provided by Vendor to meet the requirements of this solicitation shall name Collier County, Florida, as an additional insured as to the operations of Vendor under this solicitation and shall contain a severability of interests provisions. The Certificate Holder shall be named as Collier County Board of County Commissioners, OR, Board of County Commissioners in Collier County, OR Collier County Government, OR Collier County. The Certificates of Insurance must state the Contract Number, or Project Number, or specific Project description, or must read: For any and all work performed on behalf of Collier County. The amounts and types of insurance coverage shall conform to the minimum requirements set forth in EXHIBIT B with the use of Insurance Services Office (ISO) forms and endorsements or their equivalents. If Vendor has any self-insured retentions or deductibles under any of the below listed minimum required coverage, Vendor must identify on the Certificate of Insurance the nature and amount of such self- insured retentions or deductibles and provide satisfactory evidence of financial responsibility for such obligations. All self-insured retentions or deductibles will be Vendor's sole responsibility. Coverages shall be maintained without interruption from the date of commencement of the Work until the date of completion and acceptance of the scope of work by the County or as specified in this solicitation, whichever is longer. The Vendor and/or its insurance carrier shall provide thirty (30) days written notice to the County of policy cancellation or non-renewal on the part of the insurance carrier or the Vendor. The Vendor shall also notify the County, in a like manner, within twenty-four (24) hours after receipt, of any notices of expiration, cancellation, non-renewal or material change in coverage or limits received by Vendor from its insurer and nothing contained herein shall relieve Vendor of this requirement to provide notice. In the event of a reduction in the aggregate limit of any policy to be provided by Vendor hereunder, Vendor shall immediately take steps to have the aggregate limit reinstated to the full extent permitted under such policy. Should at any time the Vendor not maintain the insurance coverageal required herein, the County may terminate the Agreement or at its sole discretion shall be authorized to purchase such coverage and charge the Vendor for such coverage(s) purchased. If Vendor fails to reimburse the County for such costs within thirty .-. 39 16-6620 Clam Pass Dredging Packet Page -95- 3/22/2016 11 .C. days after demand, the County has the right to offset these costs from any amount due Vendor under this Agreement or any other agreement between the County and Vendor. The County shall be under no obligation to purchase such insurance, nor shall it be responsible for the coverages purchased or the insurance company or companies used. The decision of the County to purchase such insurance coverages shall in no way be construed to be a waiver of any of its rights under the Contract Documents. If the initial or any subsequently issued Certificate of Insurance expires prior to the completion of the scope of work, the Vendor shall furnish to the County renewal or replacement Certificate(s) of Insurance not later than ten (10) calendar days after the expiration date on the certificate. Failure of the Vendor to provide the County with such renewal certificate(s) shall be considered justification for the County to terminate any and all contracts. 40 16-6620 Clam Pass Dredging Packet Page -96- 3/22/2016 11.C. Collier County Florida '~ Insurance and Bonding Requirements Insurance/Bond Type Required Limits 1. ®Worker's Statutory Limits of Florida Statutes, Chapter 440 and all Federal Government Compensation Statutory Limits and Requirements 2. ® Employer's Liability $1,000,000 single limit per occurrence 3. ® Commercial General Bodily Injury and Property Damage Liability(Occurrence Form) patterned after the current $1,000,000 per occurrence, $2,000,000 aggregate for Bodily Injury Liability ISO form and Property Damage Liability. This shall include Premises and Operations; Independent Contractors; Products and Completed Operations and Contractual Liability. 4. ® Indemnification To the maximum extent permitted by Florida law, the Contractor/Vendor/Consultant shall indemnify and hold harmless Collier County, its officers and employees from any and all liabilities, damages, losses and costs, including, but not limited to, reasonable attorneys'fees and paralegals'fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the ContractorNendor/Consultant or anyone employed or utilized by the Contractor/Vendor/Consultant in the performance of this Agreement. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be available to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. 4. ® Automobile Liability $ 11000,000 Each Occurrence; Bodily Injury& Property Damage, Owned/Non- owned/Hired; Automobile Included 5. ® Other insurance as ®Watercraft $ 1,000,000 Per Occurrence noted: ® United States Longshoreman's and Harborworker's Act coverage shall be maintained where applicable to the completion of the work. $ 1,000,000 Per Occurrence Maritime Coverage (Jones Act)shall be maintained where applicable to the completion of the work. $ 1,000,000 Per Occurrence ❑ Aircraft Liability coverage shall be carried in limits of not less than $5,000,000 each occurrence if applicable to the completion of the Services under this Agreement. $ Per Occurrence ❑ Pollution $ Per Occurrence ❑ Professional Liability $ per claim and in the aggregate • $1,000,000 per claim and in the aggregate • $2,000,000 per claim and in the aggregate ❑ Project Professional Liability $ Per Occurrence 41 16-6620 Clam Pass Dredging Packet Page -97- 3/22/2016 11.C. ❑ Valuable Papers insurance $ Per Occurrence ❑ Employee Dishonesty/Crime $ Per Occurrence Including Employee Theft, Funds Transfer Fraud, Include a Joint Loss Payee endorsement naming Collier County. 6. ® Bid bond Shall be submitted with proposal response in the form of certified funds, cashiers' check or an irrevocable letter of credit, a cash bond posted with the County Clerk, or proposal bond in a sum equal to 5% of the cost proposal. All checks shall be made payable to the Collier County Board of County Commissioners on a bank or trust company located in the State of Florida and insured by the Federal Deposit Insurance Corporation. 7. ® Performance and For projects in excess of$200,000, bonds shall be submitted with the Payment Bonds executed contract by Proposers receiving award, and written for 100% of the Contract award amount, the cost borne by the Proposer receiving an award. The Performance and Payment Bonds shall be underwritten by a surety authorized to do business in the State of Florida and otherwise acceptable to Owner; provided, however, the surety shall be rated as "A-"or better as to general policy holders rating and Class V or higher rating as to financial size category and the amount required shall not exceed 5% of the reported policy holders' surplus, all as reported in the most current Best Key Rating Guide, published by A.M. Best Company, Inc. of 75 Fulton Street, New York, New York 10038. 8. ® Vendor shall ensure that all subcontractors comply with the same insurance requirements that he is required to meet. The same Vendor shall provide County with certificates of insurance meeting the required insurance provisions. 9. ® Collier County must be named as "ADDITIONAL INSURED" on the Insurance Certificate for Commercial General Liability where required. 10. ® The Certificate Holder shall be named as Collier County Board of County Commissioners, OR, Board of County Commissioners in Collier County, OR Collier County Government, OR Collier County. The Certificates of Insurance must state the Contract Number, or Project Number, or specific Project description, or must read: For any and all work performed on behalf of Collier County. 11. ® Thirty (30) Days Cancellation Notice required. RLC 3/4/2016 Vendor's Insurance Statement We understand the insurance requirements of these specifications and that the evidence of insurability may be required within five (5) days of the award of this solicitation. Name of Firm Date Vendor Signature Print Name Insurance Agency Agent Name Telephone Number 42 16-6620 Clam Pass Dredging Packet Page -98- 3/22/2016 11.C. EXHIBIT C: RELEASE AND AFFIDAVIT FORM COUNTY OF COLLIER ) STATE OF FLORIDA ) Before me, the undersigned authority, personally appeared who after being duly sworn, deposes and says: (1) In accordance with the Contract Documents and in consideration of $ paid, ("Contractor") releases and waives for itself and its subcontractors, material-men, successors and assigns, all claims demands, damages, costs and expenses, whether in contract or in tort, against the Board of County Commissioners of Collier County, Florida, relating in any way to the performance of the Agreement between Contractor and Owner dated , 20 for the period from to , excluding all retainage withheld and any pending claims or disputes as expressly specified as follows: (2) Contractor certifies for itself and its subcontractors, material-men, successors and assigns, that all charges for labor, materials, supplies, lands, licenses and other expenses for which Owner might be sued or for which a lien or a demand against any payment bond might be filed, have been fully satisfied and paid. (3) To the maximum extent permitted by law, Contractor agrees to indemnify, defend and save harmless Owner from all demands or suits, actions, claims of liens or other charges filed or asserted against the Owner arising out of the performance by Contractor of the Work covered by this Release and Affidavit. (4) This Release and Affidavit is given in connection with Contractor's [monthly/final] Application for Payment No. CONTRACTOR BY: ITS: President DATE: Witnesses STATE OF COUNTY OF The foregoing instrument was acknowledged before me this day of , 20 , by , as of , a corporation, on behalf of the corporation. He/she is personally known to me or has produced as identification and did (did not)take an oath. My Commission Expires: (Signature of Notary) NAME: (Legibly Printed) (AFFIX OFFICIAL SEAL) Notary Public, State of Commissioner No.: 43 16-6620 Clam Pass Dredging Packet Page -99- 3/22/2016 11 .C. 'II Packet Page -100- 3/22/2016 11 .C. EXHIBIT D: FORM OF CONTRACT APPLICATION FOR PAYMENT Payment, Schedule of Values and Stored Materials Record applications are available for download at: http://purchasinq.colliergov.net/Forms/Forms/Allltems.aspx 45 16-6620 Clam Pass Dredging Packet Page -101- 3/22/2016 11 .C. EXHIBIT E: CHANGE ORDER An electronic data entry form may be found at: http://bccspOl/SiteDirectory/ASD/Purchasing/Formsl/Forms/Default.aspx Change Order Form Contract*: Change*: Purchase Order*: Project a: Contractor/Firm Name: Project Name: Project Manager Name Department: *ginaICorttactWckQder Amount ig inal BCC Approval Date;Agenda Item# ,Current BCC Aparmied Arrount Last ECC_Approval Date; Aoenda Iterp#,, Current Cant sct(vV ark Order Am-aunt SAP Contract Expit stion Da {Master), Dollar Amount of this Change #101V10! Total C he nge tom Original Amount Revised CantracriN c.ric Oider Total S 0.00 IVID! Change from Ctn.ern BCC.Approver!Amount Cu triJiBihe C ha 0.00 aiD IV/O! Change from Crsr Errt Amount Completion Date,Description of the Tasks)Change,and Rationale for the Change Notice to Proceel Original I Last Approved Revised Date Date Completion DateJ Date nnatid-m tra oking et a of Days Added Select Tasks i Add new task(s) 1D Delete task(s) 11.Change task{s} at Other(see beak) Provide a response to the following:1.)detailed and specific explanationkationale of the requested change(s)to the task{s)and)or the additional days added(if requested);2.)why this change was not included in the original contract;and,3.)describe the impact if this change is not processed. Arch additional information from the Design Professioral anc,or Contractor if needed. Prepared by: Date:: ;project Manager Name arid Depanment) Acceptance of this Change Order shall corstitura a modification to contra I WOrkord4r ideraified atove and will te subject to at the same terms and Canditiorts as containeJ in the conlr.sctIwokoTdenircatedatcve.as fully as if ameweneedmthts acceptance.The adnistment,if any,to the Contra..1 s hall coriVhde a full and final settlement of any and all claims of the Connotor Verioor CCe5uharri: Design Professional arising our of or related to the change set forth herein,including claims for impact and delay ooze. Accepted by: Date- (Contractor/liendori Cons Aare Design Profeasional and Name of Firm,if project appiticable) Approved by: Dare: (Design Professional and Name of Firm,if project appicable) Approved by: Date: (Procurement Professional ",`,:e>Y1S 1,3?' solitala E);rats es 46 16-6620 Clam Pass Dredging Packet Page -102- 3/22/2016 11 .C. EXHIBIT F: CERTIFICATE OF SUBSTANTIAL COMPLETION OWNER'S Project No. Design Professional's Project No. PROJECT: CONTRACTOR Contract For Contract Date This Certificate of Substantial Completion applies to all Work under the Contract Documents or to the following specified parts thereof: To OWNER And To Substantial Completion is the state in the progress of the Work when the Work (or designated portion) is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. The Work to which this Certificate applies has been inspected by authorized representatives of OWNER, CONTRACTOR AND DESIGN PROFESSIONAL, and that Work is hereby declared to be substantially complete in accordance with the requirements of the Contract Documents on: DATE OF SUBSTANTIAL COMPLETION A tentative list of items to be completed or corrected is attached hereto. This list may not be all-inclusive, and the failure to include an item in it does not alter the responsibility of CONTRACTOR to complete all the Work in accordance with the Contract Documents. The items in the tentative list shall be completed or corrected by CONTRACTOR within days of the above date of Substantial Completion. The responsibilities between OWNER and CONTRACTOR for security, operation, safety, maintenance, heat, utilities, insurance and warranties shall be as follows: 47 16-6620 Clam Pass Dredging Packet Page -103- 3/22/2016 11 .C. RESPONSIBILITIES: OWNER: CONTRACTOR The following documents are attached to and made a part of this Certificate: This certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of CONTRACTOR'S obligation to complete the Work in accordance with the Contract Documents. Executed by Design Professional on , 20 Design Professional By: Type Name and Title CONTRACTOR accepts this Certificate of Substantial Completion on 20 CONTRACTOR By: Type Name and Title OWNER accepts this Certificate of Substantial Completion on , 20 OWNER By: Type Name and Title 48 16-6620 Clam Pass Dredging Packet Page -104- 3/22/2016 11.C. EXHIBIT G: FINAL PAYMENT CHECKLIST Bid No.: Project No.: Date: , 20 Contractor: The following items have been secured by the for the Project known as and have been reviewed and found to comply with the requirements of the Contract Documents. Original Contract Amount: Final Contract Amount: Commencement Date: Substantial Completion Time as set forth in the Agreement: Calendar Days. Actual Date of Substantial Completion: Final Completion Time as set forth in the Agreement: Calendar Days. Actual Final Completion Date: YES NO 1. All Punch List items completed on 2. Warranties and Guarantees assigned to Owner(attach to this form). 3. Effective date of General one year warranty from Contractor is: 4. 2 copies of Operation and Maintenance manuals for equipment and system submitted (list manuals in attachment to this form). 5. As-Built drawings obtained and dated: 6. Owner personnel trained on system and equipment operation. 7. Certificate of Occupancy No.: issued on (attach to this form). 8. Certificate of Substantial Completion issued on 9. Final Payment Application and Affidavits received from Contractor on: 10. Consent of Surety received on 11. Operating Department personnel notified Project is in operating phase. 12. All Spare Parts or Special Tools provided to Owner: 13. Finished Floor Elevation Certificate provided to Owner: 14. Other: If any of the above is not applicable, indicate by N/A. If NO is checked for any of the above, attach explanation. Acknowledgments: By Contractor: (Company Name) (Signature) (Typed Name& Title) By Design Professional: (Firm Name) (Signature) (Typed Name &Title) By Owner: (Department Name) (Signature) (Name &Title) 49 16-6620 Clam Pass Dredging Packet Page -105- 3/22/2016 11.C. EXHIBIT H: GENERAL TERMS AND CONDITIONS 1. INTENT OF CONTRACT DOCUMENTS. 1.1 It is the intent of the Contract Documents to describe a functionally complete Project (or portion thereof) to be constructed in accordance with the Contract Documents. Any work, materials or equipment that may reasonably be inferred from the Contract Documents as being required to produce the intended result shall be supplied whether or not specifically called for. When words which have a well known technical or trade meaning are used to describe work, materials or equipment, such words shall be interpreted in accordance with that meaning. Reference to standard specifications, manuals or codes of any technical society, organization or association or to the laws or regulations of any governmental authority having jurisdiction over the Project, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code, law or regulation in effect at the time the Work is performed, except as may be otherwise specifically stated herein. 1.2 If before or during the performance of the Work Contractor discovers a conflict, error or discrepancy in the Contract Documents, Contractor immediately shall report same to the Project Manager in writing and before proceeding with the Work affected thereby shall obtain a written interpretation or clarification from the Project Manager; said interpretation or clarification from the Project Manager may require Contractor to consult directly with Design Professional or some other third party, as directed by Project Manager. Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to Contractor with the Contract Documents before commencing any portion of the Work. 1.3 Drawings are intended to show general arrangements, design and extent of Work and are not intended to serve as shop drawings. Specifications are separated into divisions for convenience of reference only and shall not be interpreted as establishing divisions for the Work, trades, subcontracts, or extent of any part of the Work. In the event of a discrepancy between or among the drawings, specifications or other Contract Document provisions, Contractor shall be required to comply with the provision which is the more restrictive or stringent requirement upon the Contractor, as determined by the Project Manager. Unless otherwise specifically mentioned, all anchors, bolts, screws, fittings, fillers, hardware, accessories, trim and other parts required in connection with any portion of the Work to make a complete, serviceable, finished and first quality installation shall be furnished and installed as part of the Work, whether or not called for by the Contract Documents. 2. INVESTIGATION AND UTILITIES. 2.1 Subject to Section 2.3 below, Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work and the general and local conditions, and particularly, but without limitation, with respect to the following: those affecting transportation, access, disposal, handling and storage of materials; 50 16-6620 Clam Pass Dredging Packet Page -106- 3/22/2016 11.C. availability and quality of labor; water and electric power; availability and condition of roads; work area; living facilities; climatic conditions and seasons; physical conditions at the work-site and the project area as a whole; topography and ground surface conditions; nature and quantity of the surface materials to be encountered; subsurface conditions; equipment and facilities needed preliminary to and during performance of the Work; and all other costs associated with such performance. The failure of Contractor to acquaint itself with any applicable conditions shall not relieve Contractor from any of its responsibilities to perform under the Contract Documents, nor shall it be considered the basis for any claim for additional time or compensation. 2.2 Contractor shall locate all existing roadways, railways, drainage facilities and utility services above, upon, or under the Project site, said roadways, railways, drainage facilities and utilities being referred to in this Sub-Section 2.2 as the "Utilities". Contractor shall contact the owners of all Utilities to determine the necessity for relocating or temporarily interrupting any Utilities during the construction of the Project. Contractor shall schedule and coordinate its Work around any such relocation or temporary service interruption. Contractor shall be responsible for properly shoring, supporting and protecting all Utilities at all times during the course of the Work. The Contractor is responsible for coordinating all other utility work so as to not interfere with the prosecution of the Work (except those utilities to be coordinated by the Owner as may be expressly described elsewhere in the Contract Documents). 2.3 Notwithstanding anything in the Contract Documents to the contrary, if conditions are encountered at the Project site which are (i) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (ii) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, and which reasonably should not have been discovered by Contractor as part of its scope of site investigative services required pursuant to the terms of the Contract Documents, then Contractor shall provide Owner with prompt written notice thereof before conditions are disturbed and in no event later than three (3) calendar days after first observance of such conditions. Owner and Design Professional shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in Contractor's cost of, or time required for, performance of any part of the Work, Owner will acknowledge and agree to an equitable adjustment to Contractor's compensation or time for performance, or both, for such Work. If Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents or not of an unusual nature or should have been discovered by Contractor as part of its investigative services, and that no change in the terms of the Agreement is justified, Owner shall so notify Contractor in writing, stating its reasons. Claims by Contractor in opposition to such determination by Owner must be made within seven (7) calendar days after Contractor's receipt of Owner's written determination notice. If Owner and Contractor cannot agree on an adjustment to Contractor's cost or time of performance, the dispute resolution procedure set forth in the Contract Documents shall be complied with by the parties. 51 16-6620 Clam Pass Dredging Packet Page -107- 3/22/2016 11 .C. 3. SCHEDULE. 3.1 The Contractor, within ten (10) calendar days after receipt of the Notice of Award, shall prepare and submit to Project Manager, for their review and approval, a progress schedule for the Project (herein "Progress Schedule"). The Progress Schedule shall relate to all Work required by the Contract Documents, and shall utilize the Critical Path method of scheduling and shall provide for expeditious and practicable execution of the Work within the Contract Time. The Progress Schedule shall indicate the dates for starting and completing the various stages of the Work. 3.2 The Progress Schedule shall be updated monthly by the Contractor. All monthly updates to the Progress Schedule shall be subject to the Project Manager's review and approval. Contractor shall submit the updates to the Progress Schedule with its monthly Applications for Payment noted below. The Project Manager's review and approval of the submitted Progress Schedule updates shall be a condition precedent to the Owner's obligation to pay Contractor. 3.3 All work under this Agreement shall be performed in accordance with the requirements of all Collier County Noise Ordinances then in effect. Unless otherwise specified, work will generally be limited to the hours of 7:00 a.m. to 6:59 a.m., Monday through Sunday. No work shall be performed outside the specified hours without the prior approval of the Project Manager. 4. PROGRESS PAYMENTS. 4.1 Prior to submitting its first monthly Application for Payment, Contractor shall submit to Project Manager, for their review and approval, a schedule of values based upon the Contract Price, listing the major elements of the Work and the dollar value for each element. After its approval by the Project Manager, this schedule of values shall be used as the basis for the Contractor's monthly Applications for Payment. This schedule shall be updated and submitted each month along with a completed copy of the Application for Payment form signed by the Contractor's authorized representative and attached to the Agreement as Exhibit D. 4.2 Prior to submitting its first monthly Application for Payment, Contractor shall provide to the Project Manager the list of its Subcontractors and materialmen submitted with its Bid showing the work and materials involved and the dollar amount of each subcontract and purchase order. Contractor acknowledges and agrees that any modifications to the list of Subcontractors submitted with Contractor's Bid and any subsequently identified Subcontractors are subject to Owner's prior written approval. The first Application for Payment shall be submitted no earlier than thirty (30) days after the Commencement Date. Notwithstanding anything herein to the contrary, if approved by Owner in its sole discretion, Contractor may submit its invoice for any required Payment and Performance Bonds prior to the first Application of Payment provided that Contractor has furnished Owner certified copies of the receipts evidencing the premium paid by Contractor for the bonds. 52 16-6620 Clam Pass Dredging Packet Page -108- 3/22/2016 11 .C. 4.3 Contractor shall submit all Applications for Payment to Brett Moore, Humiston & Moore, located at 5679 Strand Court, Naples FL, 34110. 4.4 Unless expressly approved by Owner in advance and in writing, said approval at Owner's sole discretion, Owner is not required to make any payment for materials or equipment that have not been incorporated into the Project. If payment is requested on the basis of materials and equipment not incorporated into the Project, but delivered and suitably stored at the site or at another location, and such payment and storage have been agreed to by Owner in writing, the Application for Payment also shall be accompanied by a bill of sale, invoice or other documentation warranting that the Owner has received the materials and equipment free and clear of all liens, charges, security interests and encumbrances, together with evidence that the materials and equipment are covered by appropriate property insurance and other arrangements to protect Owner's interest therein, all of which shall be subject to the Owner's satisfaction. Thereafter, with each Application for Payment, Contractor also shall complete and submit to Owner as part of its Application for Payment, the Stored Materials Record attached hereto and made a part hereof as Exhibit D. 4.5 Contractor shall submit six (6) copies of its monthly Application for Payment to the Project Manager or his or her designee, as directed by Owner (which designee may include the Design Professional). After the date of each Application for Payment is stamped as received and within the timeframes set forth in Section 218.735 F.S., the Project Manager, or Design Professional, shall either: (1) Indicate its approval of the requested payment; (2) indicate its approval of only a portion of the requested payment, stating in writing its reasons therefore; or (3) return the Application for Payment to the Contractor indicating, in writing, the reason for refusing to approve payment. Payments of proper invoices in the amounts approved shall be processed and paid in accordance with Section 218.735, F.S. and the administrative procedures established by the County's Purchasing Department and the Clerk of Court's Finance Department respectively. In the event of a total denial by Owner and return of the Application for Payment by the Project Manager, the Contractor may make the necessary corrections and re-submit the Application for Payment. The Owner shall, within ten (10) business days after the Application for Payment is stamped and received and after Project Manager approval of an Application for Payment, pay the Contractor the amounts so approved. 4.6 Owner shall retain ten percent (10%) of the gross amount of each monthly payment request or ten percent (10%) of the portion thereof approved by the Project Manager for payment, whichever is less. Such sum shall be accumulated and not released to Contractor until final payment is due unless otherwise agreed to by the Owner in accordance with Florida Statute 255.078. The Project Manager shall have the discretion to establish, in writing, a schedule to periodically reduce the percentage of cumulative retainage held throughout the course of the Project schedule. Owner shall reduce the amount of the retainage withheld on each payment request subsequent to fifty percent (50%) completion subject to the guidelines set forth in Florida Statute 255.078 and as set forth in the Owner's purchasing ordinance and policies. 53 16-6620 Clam Pass Dredging Packet Page -109- 3/22/2016 11.C. 4.7 Monthly payments to Contractor shall in no way imply approval or acceptance of Contractor's Work. 4.8 Each Application for Payment, subsequent to the first pay application, shall be accompanied by a Release and Affidavit, in the form attached as Exhibit C, acknowledging Contractor's receipt of payment in full for all materials, labor, equipment and other bills that are then due and payable by Owner with respect to the current Application for Payment. Further, to the extent directed by Owner and in Owner's sole discretion, Contractor shall also submit a Release and Affidavit from each Subcontractor, sub-subcontractor, or supplier in the form attached as Exhibit C acknowledging that each Subcontractor, sub-subcontractor or supplier has been paid in full through the previous month's Application for Payment. The Owner shall not be required to make payment until and unless these affidavits are furnished by Contractor. 4.9 Contractor agrees and understands that funding limitations exist and that the expenditure of funds must be spread over the duration of the Project at regular intervals based on the Contract Amount and Progress Schedule. Accordingly, prior to submitting its first monthly Application for Payment, Contractor shall prepare and submit for Project Manager's review and approval, a detailed Project Funding Schedule, which shall be updated as necessary and approved by Owner to reflect approved adjustments to the Contract Amount and Contract Time. No voluntary acceleration or early completion of the Work shall modify the time of payments to Contractor as set forth in the approved Project Funding Schedule. 4.10 Notwithstanding anything in the Contract Documents to the contrary, Contractor acknowledges and agrees that in the event of a dispute concerning payments for Work performed under this Agreement, Contractor shall continue to perform the Work required of it under this Agreement pending resolution of the dispute provided that Owner continues to pay Contractor all amounts that Owner does not dispute are due and payable. 4.11 Payments will be made for services furnished, delivered, and accepted, upon receipt and approval of invoices submitted on the date of services or within six (6) months after completion of contract. Any untimely submission of invoices beyond the specified deadline period is subject to non-payment under the legal doctrine of "'aches" as untimely submitted. Time shall be deemed of the essence with respect to the timely submission of invoices under this agreement. 4.12 The County may, at its discretion, use VISA/MASTER card credit network as a payment vehicle for goods and/or services purchased as a part of this contract. The County may not accept any additional surcharges (credit card transaction fees) as a result of using the County's credit card for transactions relating to this solicitation 5. PAYMENTS WITHHELD. 5.1 The Project Manager may decline to approve any Application for Payment, or portions thereof, because of subsequently discovered evidence or subsequent 54 16-6620 Clam Pass Dredging Packet Page -110- 3/22/2016 11.C. inspections that reveal non-compliance with the Contract Documents. The Project Manager may nullify the whole or any part of any approval for payment previously issued and Owner may withhold any payments otherwise due Contractor under this Agreement or any other agreement between Owner and Contractor, to such extent as may be necessary in the Owner's opinion to protect it from loss because of: (a) Defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims; (c) failure of Contractor to make payment properly to subcontractors or for labor, materials or equipment; (d) reasonable doubt that the Work can be completed for the unpaid balance of the Contract Amount; (e) reasonable indication that the Work will not be completed within the Contract Time; (f) unsatisfactory prosecution of the Work by the Contractor; or (g) any other material breach of the Contract Documents by Contractor. 5.2 If any conditions described in 5.1. are not remedied or removed, Owner may, after three (3) days written notice, rectify the same at Contractor's expense. Provided however, in the event of an emergency, Owner shall not be required to provide Contractor any written notice prior to rectifying the situation at Contractor's expense. Owner also may offset against any sums due Contractor the amount of any liquidated or non-liquidated obligations of Contractor to Owner, whether relating to or arising out of this Agreement or any other agreement between Contractor and Owner. 5.3 In instances where the successful contractor may owe debts (including, but not limited to taxes or other fees) to Collier County and the contractor has not satisfied nor made arrangement to satisfy these debts, the County reserves the right to off-set the amount owed to the County by applying the amount owed to the vendor or contractor for services performed of for materials delivered in association with a contract. 6. FINAL PAYMENT. 6.1 Owner shall make final payment to Contractor in accordance with Section 218.735, F.S. and the administrative procedures established by the County's Purchasing Department and the Clerk of Court's Finance Department after the Work is finally inspected and accepted by Project Manager as set forth with Section 20.1 herein, provided that Contractor first, and as an explicit condition precedent to the accrual of Contractor's right to final payment, shall have furnished Owner with a properly executed and notarized copy of the Release and Affidavit attached as Exhibit C, as well as, a duly executed copy of the Surety's consent to final payment and such other documentation that may be required by the Contract Documents and the Owner. Prior to release of final payment and final retainage, the Contractor's Representative and the Project Manager shall jointly complete the Final Payment Checklist, a representative copy of which is attached to this Agreement as Exhibit G. 6.2 Contractor's acceptance of final payment shall constitute a full waiver of any and all claims by Contractor against Owner arising out of this Agreement or otherwise relating to the Project, except those previously made in writing in accordance with the requirements of the Contract Documents and identified by Contractor as unsettled in its 55 16-6620 Clam Pass Dredging Packet Page -111- 3/22/2016 11.C. final Application for Payment. Neither the acceptance of the Work nor payment by Owner shall be deemed to be a waiver of Owner's right to enforce any obligations of Contractor hereunder or to the recovery of damages for defective Work not discovered by the Design Professional or Project Manager at the time of final inspection. 7. SUBMITTALS AND SUBSTITUTIONS. 7.1 Contractor shall carefully examine the Contract Documents for all requirements for approval of materials to be submitted such as shop drawings, data, test results, schedules and samples. Contractor shall submit all such materials at its own expense and in such form as required by the Contract Documents in sufficient time to prevent any delay in the delivery of such materials and the installation thereof. 7.2 Whenever materials or equipment are specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular supplier, the naming of the item is intended to establish the type, function and quality required. Unless the name is followed by words indicating that no substitution is permitted, materials or equipment of other suppliers may be accepted by Owner if sufficient information is submitted by Contractor to allow the Owner to determine that the material or equipment proposed is equivalent or equal to that named. Requests for review of substitute items of material and equipment will not be accepted by Owner from anyone other than Contractor and all such requests must be submitted by Contractor to Project Manager within thirty (30) calendar days after Notice of Award is received by Contractor, unless otherwise mutually agreed in writing by Owner and Contractor. 7.3 If Contractor wishes to furnish or use a substitute item of material or equipment, Contractor shall make application to the Project Manager for acceptance thereof, certifying that the proposed substitute shall adequately perform the functions and achieve the results called for by the general design, be similar and of equal substance to that specified and be suited to the same use as that specified. The application shall state that the evaluation and acceptance of the proposed substitute will not prejudice Contractor's achievement of substantial completion on time, whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for the Project) to adapt the design to the proposed substitute and whether or not incorporation or use by the substitute in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute from that specified will be identified in the application and available maintenance, repair and replacement service shall be indicated. The application also shall contain an itemized estimate of all costs that will result directly or indirectly from acceptance of such substitute, including costs for redesign and claims of other contractors affected by the resulting change, all of which shall be considered by the Project Manager in evaluating the proposed substitute. The Project Manager may require Contractor to furnish at Contractor's expense additional data about the proposed substitute. 7.4 If a specific means, method, technique, sequence or procedure of construction is indicated in or required by the Contract Documents, Contractor may furnish or utilize a 56 16-6620 Clam Pass Dredging Packet Page -112- 3/22/2016 11 .C. substitute means, method, sequence, technique or procedure of construction acceptable to the Project Manager, if Contractor submits sufficient information to allow the Project Manager to determine that the substitute proposed is equivalent to that indicated or required by the Contract Documents. The procedures for submission to and review by the Project Manager shall be the same as those provided herein for substitute materials and equipment. 7.5 The Project Manager shall be allowed a reasonable time within which to evaluate each proposed substitute and, if need be, to consult with the Design Professional. No substitute will be ordered, installed or utilized without the Project Manager's prior written acceptance which shall be evidenced by a Change Order, a Work Directive Change, a Field Order or an approved Shop Drawing. The Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. The Project Manager will record time required by the Project Manager and the Project Manager's consultants in evaluating substitutions proposed by Contractor and making changes in the Contract Documents occasioned thereby. Whether or not the Owner accepts a proposed substitute, Contractor shall reimburse Owner for the charges of the Design Professional and the Design Professional's consultants for evaluating each proposed substitute. 8. DAILY REPORTS, SIGNED AND SEALED AS-BUILTS AND MEETINGS. 8.1 Unless waived in writing by Owner, Contractor shall complete and submit to Project Manager on a weekly basis a daily log of the Contractor's work for the preceding week in a format approved by the Project Manager. The daily log shall document all activities of Contractor at the Project site including, but not limited to, the following: 8.1.1 Weather conditions showing the high and low temperatures during work hours, the amount of precipitation received on the Project site, and any other weather conditions which adversely affect the Work; 8.1.2 Soil conditions which adversely affect the Work; 8.1.3 The hours of operation by Contractor's and Sub-Contractor's personnel; 8.1.4 The number of Contractor's and Sub-Contractor's personnel present and working at the Project site, by subcontract and trade; 8.1.5 All equipment present at the Project site, description of equipment use and designation of time equipment was used (specifically indicating any down time); 8.1.6 Description of Work being performed at the Project site; 8.1.7 Any unusual or special occurrences at the Project site; 8.1.8 Materials received at the Project site; 57 16-6620 Clam Pass Dredging Packet Page -113- 3/22/2016 11.C. 8.1.9 A list of all visitors to the Project 8.1.10 Any problems that might impact either the cost or quality of the Work or the time of performance. The daily log shall not constitute nor take the place of any notice required to be given by Contractor to Owner pursuant to the Contract Documents. 8.2 Contractor shall maintain in a safe place at the Project site one record copy of the Contract Documents, including, but not limited to, all drawings, specifications, addenda, amendments, Change Orders, Work Directive Changes and Field Orders, as well as all written interpretations and clarifications issued by the Design Professional, in good order and annotated to show all changes made during construction. The annotated drawings shall be continuously updated by the Contractor throughout the prosecution of the Work to accurately reflect all field changes that are made to adapt the Work to field conditions, changes resulting from Change Orders, Work Directive Changes and Field Orders, and all concealed and buried installations of piping, conduit and utility services. All buried and concealed items, both inside and outside the Project site, shall be accurately located on the annotated drawings as to depth and in relationship to not less than two (2) permanent features (e.g. interior or exterior wall faces). The annotated drawings shall be clean and all changes, corrections and dimensions shall be given in a neat and legible manner in a contrasting color. The "As- Built" record documents, together with all approved samples and a counterpart of all .-� approved shop drawings shall be available to the Project Manager or Design Professional for reference. Upon completion of the Work and as a condition precedent to Contractor's entitlement to final payment, these "As-Built" record documents, samples and shop drawings shall be delivered to Project Manager by Contractor for Owner. 8.3 Contractor shall keep all records and supporting documentation, which concern or relate to the Work hereunder for a minimum of five (5) years from the date of termination of this Agreement or the date the Project is completed or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119, including specifically those contractual requirements in F.S. § 119.0701(2(a) — (d) and (3) as follows: (2) In addition to other contract requirements provided by law, each public agency contract for services must include a provision that requires the contractor to comply with public records laws, specifically to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as �-. authorized by law. 58 16-6620 Clam Pass Dredging Packet Page -114 3/22/2016 11.C. (d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. (3) If a contractor does not comply with a public records request, the public agency shall enforce the contract provisions in accordance with the contract. 9. CONTRACT TIME AND TIME EXTENSIONS. 9.1 Contractor shall diligently pursue the completion of the Work and coordinate the Work being done on the Project by its subcontractors and material-men, as well as coordinating its Work with all work of others at the Project Site, so that its Work or the work of others shall not be delayed or impaired by any act or omission by Contractor. Contractor shall be solely responsible for all construction means, methods, techniques, sequences, and procedures, as well as coordination of all portions of the Work under the Contract Documents, and the coordination of Owner's suppliers and contractors as set forth in Paragraph 12.2. herein. 9.2 Should Contractor be obstructed or delayed in the prosecution of or completion of the Work as a result of unforeseeable causes beyond the control of Contractor, and not due to its fault or neglect, including but not restricted to acts of Nature or of the public enemy, acts of government, fires, floods, epidemics, quarantine regulation, strikes or lockouts, Contractor shall notify the Owner in writing within forty-eight (48) hours after the commencement of such delay, stating the cause or causes thereof, or be deemed to have waived any right which Contractor may have had to request a time extension. 9.3 No interruption, interference, inefficiency, suspension or delay in the commencement or progress of the Work from any cause whatever, including those for which Owner may be responsible, in whole or in part, shall relieve Contractor of its duty to perform or give rise to any right to damages or additional compensation from Owner. Contractor expressly acknowledges and agrees that it shall receive no damages for delay. Contractor's sole remedy, if any, against Owner will be the right to seek an extension to the Contract Time; provided, however, the granting of any such time extension shall not be a condition precedent to the aforementioned "No Damage For Delay" provision. This paragraph shall expressly apply to claims for early completion, as well as to claims based on late completion. 9.4 In no event shall any approval by Owner authorizing Contractor to continue performing Work under this Agreement or any payment issued by Owner to Contractor be deemed a waiver of any right or claim Owner may have against Contractor for delay damages hereunder. 59 16-6620 Clam Pass Dredging Packet Page -115- 3/22/2016 11 .C. .-. 10. CHANGES IN THE WORK. 10.1 Owner shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, Contractor shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, or as expressly set forth herein, no addition or changes to the Work shall be made except upon written order of Owner, and Owner shall not be liable to the Contractor for any increased compensation without such written order. No officer, employee or agent of Owner is authorized to direct any extra or changed work orally. Any alleged changes must be approved by Owner in writing prior to starting such items. Owner will not be responsible for the costs of any changes commenced without Owner's express prior written approval. Failure to obtain such prior written approval for any changes will be deemed: (i) a waiver of any claim by Contractor for such items and (ii) an admission by Contractor that such items are in fact not a change but rather are part of the.Work required of Contractor hereunder. 10.2 A Change Order, in the form attached as Exhibit E to this Agreement, shall be issued and executed promptly after an agreement is reached between Contractor and Owner concerning the requested changes. Contractor shall promptly perform changes authorized by duly executed Change Orders. The Contract Amount and Contract Time shall be adjusted in the Change Order in the manner as Owner and Contractor shall mutually agree. 10.3 If Owner and Contractor are unable to agree on a Change Order for the requested change, Contractor shall, nevertheless, promptly perform the change as directed by Owner in a written Work Directive Change. In that event, the Contract Amount and Contract Time shall be adjusted as directed by Owner. If Contractor disagrees with the Owner's adjustment determination, Contractor must make a claim pursuant to Section 11 of these General Conditions or else be deemed to have waived any claim on this matter it might otherwise have had. 10.4 In the event a requested change results in an increase to the Contract Amount, the amount of the increase shall be limited to the Contractor's reasonable direct labor and material costs and reasonable actual equipment costs as a result of the change (including allowance for labor burden costs) plus a maximum ten percent (10%) markup for all overhead and profit. In the event such change Work is performed by a Subcontractor, a maximum ten percent (10%) markup for all overhead and profit for all Subcontractors' and sub-subcontractors' direct labor and material costs and actual equipment costs shall be permitted, with a maximum five percent (5%) markup thereon by the Contractor for all of its overhead and profit, for a total maximum markup of fifteen percent (15%). All compensation due Contractor and any Subcontractor or sub- subcontractor for field and home office overhead is included in the markups noted above. Contractor's and Sub-Contractor's bond costs associated with any change order shall be included in the overhead and profit expenses and shall not be paid as a separate line item. No markup shall be placed on sales tax, shipping or subcontractor markup. 60 16-6620 Clam Pass Dredging Packet Page -116- 3/22/2016 11 .C. 10.5 Owner shall have the right to conduct an audit of Contractor's books and records to verify the accuracy of the Contractor's claim with respect to Contractor's costs associated with any Change Order or Work Directive Change. 10.6 The Project Manager shall have authority to order minor changes in the Work not involving an adjustment to the Contract Amount or an extension to the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes may be effected by Field Order or by other written order. Such changes shall be binding on the Contractor. 10.7 Any modifications to this Contract shall be in compliance with the County purchasing ordinance and policies and Administrative Procedures in effect at the time such modifications are authorized. 11. CLAIMS AND DISPUTES. 11.1 Claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between Owner and Contractor arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim. 11.2 Claims by the Contractor shall be made in writing to the Project Manager within forty-eight (48) hours from when the Contractor knew or should have known of the event giving rise to such Claim or else the Contractor shall be deemed to have waived the Claim. Written supporting data shall be submitted to the Project Manager within fifteen (15) calendar days after the occurrence of the event, unless the Owner grants additional time in writing, or else the Contractor shall be deemed to have waived the Claim. All Claims shall be priced in accordance with the provisions of Subsection 10.4. 11.3 The Contractor shall proceed diligently with its performance as directed by the Owner, regardless of any pending Claim, action, suit or administrative proceeding, unless otherwise agreed to by the Owner in writing. Owner shall continue to make payments in accordance with the Contract Documents during the pendency of any Claim. 12. OTHER WORK. 12.1 Owner may perform other work related to the Project at the site by Owner's own forces, have other work performed by utility owners or let other direct contracts. If the fact that such other work is to be performed is not noted in the Contract Documents, written notice thereof will be given to Contractor prior to starting any such other work. If Contractor believes that such performance will involve additional expense to Contractor or require additional time, Contractor shall send written notice of that fact to Owner and Design Professional within forty-eight (48) hours of being notified of the other work. If the Contractor fails to send the above required forty-eight (48) hour notice, the 61 16-6620 Clam Pass Dredging Packet Page -117- 3/22/2016 11.C. Contractor will be deemed to have waived any rights it otherwise may have had to seek an extension to the Contract Time or adjustment to the Contract Amount. 12.2 Contractor shall afford each utility owner and other contractor who is a party to such a direct contract (or Owner, if Owner is performing the additional work with Owner's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such work and shall properly connect and coordinate its Work with theirs. Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of the Project Manager and the others whose work will be affected. The duties and responsibilities of Contractor under this paragraph are for the benefit of such utility owners and other Contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. 12.3 If any part of Contractor's Work depends for proper execution or results upon the work of any other contractor or utility owner (or Owner), Contractor shall inspect and promptly report to Project Manager in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results. Contractor's failure to report will constitute an acceptance of the other work as fit and proper for integration with Contractor's Work. 13. INDEMNIFICATION AND INSURANCE. 13.1 To the maximum extent permitted by Florida law, Contractor shall indemnify and hold harmless Owner and its officers and employees from any and all liabilities, claims, damages, penalties, demands, judgments, actions, proceedings, losses or costs, including, but not limited to, reasonable attorneys' fees and paralegals' fees, whether resulting from any claimed breach of this Agreement by Contractor, any statutory or regulatory violations, or from personal injury, property damage, direct or consequential damages, or economic loss, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of Contractor or anyone employed or utilized by the Contractor in the performance of this Agreement. 13.2 The duty to defend under this Article 13 is independent and separate from the duty to indemnify, and the duty to defend exists regardless of any ultimate liability of the Contractor, Owner and any indemnified party. The duty to defend arises immediately upon presentation of a claim by any party and written notice of such claim being provided to Contractor. Contractor's obligation to indemnify and defend under this Article 13 will survive the expiration or earlier termination of this Agreement until it is determined by final judgment that an action against the Owner or an indemnified party for the matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. 62 16-6620 Clam Pass Dredging Packet Page -118- 3/22/2016 11.C. 13.3 Contractor shall obtain and carry, at all times during its performance under the Contract Documents, insurance of the types and in the amounts set forth in Exhibit B to the Agreement. Further, the Contractor shall at all times comply with all of the terms, conditions, requirements and obligations set forth under Exhibit B. 14. COMPLIANCE WITH LAWS. 14.1 Contractor agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, worker's compensation, equal employment and safety (including, but not limited to, the Trench Safety Act, Chapter 553, Florida Statutes). If Contractor observes that the Contract Documents are at variance therewith, it shall promptly notify Project Manager in writing. To the extent any law, rule, regulation, code, statute, or ordinance requires the inclusion of certain terms in this Agreement in order for this Agreement to be enforceable, such terms shall be deemed included in this Agreement. Notwithstanding anything in the Contract Documents to the contrary, it is understood and agreed that in the event of a change in any applicable laws, ordinances, rules or regulations subsequent to the date this Agreement was executed that increases the Contractor's time or cost of performance of the Work, Contractor is entitled to a Change Order for such increases, except to the extent Contractor knew or should have known of such changes prior to the date of this Agreement. 14.2 By executing and entering into this agreement, the Contractor is formally acknowledging without exception or stipulation that it is fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations relating thereto, as either may be amended. Failure by the Contractor to comply with the laws referenced herein shall constitute a breach of this agreement and the County shall have the discretion to unilaterally terminate this agreement immediately. 14.3 Statutes and executive orders require employers to abide by the immigration laws of the United States and to employ only individuals who are eligible to work in the United States. The Employment Eligibility Verification System (E-Verify) operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA), provides an Internet-based means of verifying employment eligibility of workers in the United States; it is not a substitute for any other employment eligibility verification requirements. The program will be used for Collier County formal Invitations to Bid (ITB) and Request for Proposals (RFP) including professional services and construction services. Exceptions to the program: • Commodity based procurement where no services are provided. • Where the requirement for the affidavit is waived by the Board of County Commissioners 63 16-6620 Clam Pass Dredging Packet Page -119- 3/22/2016 11 .C. Vendors / Bidders are required to enroll in the E-Verify program, and provide acceptable evidence of their enrollment, at the time of the submission of the vendor's/bidder's proposal. Acceptable evidence consists of a copy of the properly completed E-Verify Company Profile page or a copy of the fully executed E-Verify Memorandum of Understanding for the company. Vendors are also required to provide the Collier County Purchasing Department an executed affidavit certifying they shall comply with the E-Verify Program. The affidavit is attached to the solicitation documents. If the BidderNendor does not comply with providing both the acceptable E-Verify evidence and the executed affidavit the bidder's / vendor's proposal may be deemed non-responsive. Additionally, vendors shall require all subcontracted vendors to use the E-Verify system for all purchases not covered under the "Exceptions to the program" clause above. For additional information regarding the Employment Eligibility Verification System (E- Verify) program visit the following website: http://www.dhs.gov/E-Verify. It shall be the vendor's responsibility to familiarize themselves with all rules and regulations governing this program. Vendor acknowledges, and without exception or stipulation, any firm(s) receiving an award shall be fully responsible for complying with the provisions of the Immigration Reform and Control Act of 1986 as located at 8 U.S.C. 1324, et seq. and regulations relating thereto, as either may be amended and with the provisions contained within this affidavit. Failure by the awarded firm(s) to comply with the laws referenced herein or the provisions of this affidavit shall constitute a breach of the award agreement and the County shall have the discretion to unilaterally terminate said agreement immediately. 15. CLEANUP AND PROTECTIONS. 15.1 Contractor agrees to keep the Project site clean at all times of debris, rubbish and waste materials arising out of the Work. At the completion of the Work, Contractor shall remove all debris, rubbish and waste materials from and about the Project site, as well as all tools, appliances, construction equipment and machinery and surplus materials, and shall leave the Project site clean and ready for occupancy by Owner. 15.2 Any existing surface or subsurface improvements, including, but not limited to, pavements, curbs, sidewalks, pipes, utilities, footings, structures, trees and shrubbery, not indicated in the Contract Documents to be removed or altered, shall be protected by Contractor from damage during the prosecution of the Work. Subject to the Section 2.3 above, any such improvements so damaged shall be restored by Contractor to the condition equal to that existing at the time of Contractor's commencement of the Work. 16. ASSIGNMENT. 16.1 Contractor shall not assign this Agreement or any part thereof, without the prior consent in writing of Owner. Any attempt to assign or otherwise transfer this Agreement, 64 16-6620 Clam Pass Dredging Packet Page -120- 3/22/2016 11 .C. or any part herein, without the Owner's consent, shall be void. If Contractor does, with approval, assign this Agreement or any part thereof, it shall require that its assignee be bound to it and to assume toward Contractor all of the obligations and responsibilities that Contractor has assumed toward Owner. 17. PERMITS, LICENSES AND TAXES. 17.1 Pursuant to Section 218.80, F.S., Owner will pay for all Collier County permits and fees, including license fees, permit fees, impact fees or inspection fees applicable to the Work through an internal budget transfer(s). Contractor is not responsible for paying for permits issued by Collier County, but Contractor is responsible for acquiring all permits. Owner may require the Contractor to deliver internal budget transfer documents to applicable Collier County agencies when the Contractor is acquiring permits. Owner will not be obligated to pay for any permits obtained by Subcontractors. 17.2 All permits, fees and licenses necessary for the prosecution of the Work which are not issued by Collier County shall be acquired and paid for by the Contractor. 17.3 Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. 18. TERMINATION FOR DEFAULT. 18.1 Contractor shall be considered in material default of the Agreement and such default shall be considered cause for Owner to terminate the Agreement, in whole or in part, as further set forth in this Section, if Contractor: (1) fails to begin the Work under the Contract Documents within the time specified herein; or (2) fails to properly and timely perform the Work as directed by the Project Manager or as provided for in the approved Progress Schedule; or (3) performs the Work unsuitably or neglects or refuses to remove materials or to correct or replace such Work as may be rejected as unacceptable or unsuitable; or (4) discontinues the prosecution of the Work; or (5) fails to resume Work which has been suspended within a reasonable time after being notified to do so; or (6) becomes insolvent or is declared bankrupt, or commits any act of bankruptcy; or (7) allows any final judgment to stand against it unsatisfied for more than ten (10) days; or (8) makes an assignment for the benefit of creditors; or (9) fails to obey any applicable codes, laws, ordinances, rules or regulations with respect to the Work; or (10) materially breaches any other provision of the Contract Documents. 18.2 Owner shall notify Contractor in writing of Contractor's default(s). If Owner determines that Contractor has not remedied and cured the default(s) within seven (7) calendar days following receipt by Contractor of said written notice or such longer period of time as may be consented to by Owner in writing and in its sole discretion, then Owner, at its option, without releasing or waiving its rights and remedies against the Contractor's sureties and without prejudice to any other right or remedy it may be entitled to hereunder or by law, may terminate Contractor's right to proceed under the Agreement, in whole or in part, and take possession of all or any portion of the Work 65 16-6620 Clam Pass Dredging Packet Page -121- 3/22/2016 11 .C. and any materials, tools, equipment, and appliances of Contractor, take assignments of any of Contractor's subcontracts and purchase orders, and complete all or any portion of Contractor's Work by whatever means, method or agency which Owner, in its sole discretion, may choose. 18.3 If Owner deems any of the foregoing remedies necessary, Contractor agrees that it shall not be entitled to receive any further payments hereunder until after the Project is completed. All moneys expended and all of the costs, losses, damages and extra expenses, including all management, administrative and other overhead and other direct and indirect expenses (including Design Professional and attorneys' fees) or damages incurred by Owner incident to such completion, shall be deducted from the Contract Amount, and if such expenditures exceed the unpaid balance of the Contract Amount, Contractor agrees to pay promptly to Owner on demand the full amount of such excess, including costs of collection, attorneys' fees (including appeals) and interest thereon at the maximum legal rate of interest until paid. If the unpaid balance of the Contract Amount exceeds all such costs, expenditures and damages incurred by the Owner to complete the Work, such excess shall be paid to the Contractor. The amount to be paid to the Contractor or Owner, as the case may be, shall be approved by the Project Manager, upon application, and this obligation for payment shall survive termination of the Agreement. 18.4 The liability of Contractor hereunder shall extend to and include the full amount of any and all sums paid, expenses and losses incurred, damages sustained, and obligations assumed by Owner in good faith under the belief that such payments or assumptions were necessary or required, in completing the Work and providing labor, materials, equipment, supplies, and other items therefore or re-letting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments pertaining to or arising out of the Work hereunder. 18.5 If, after notice of termination of Contractor's right to proceed pursuant to this Section, it is determined for any reason that Contractor was not in default, or that its default was excusable, or that Owner is not entitled to the remedies against Contractor provided herein, then the termination will be deemed a termination for convenience and Contractor's remedies against Owner shall be the same as and limited to those afforded Contractor under Section 19 below. 18.6 In the event (i) Owner fails to make any undisputed payment to Contractor within thirty (30) days after such payment is due or Owner otherwise persistently fails to fulfill some material obligation owed by Owner to Contractor under this Agreement, and (ii) Owner has failed to cure such default within fourteen (14) days of receiving written notice of same from Contractor, then Contractor may stop its performance under this Agreement until such default is cured, after giving Owner a second fourteen (14) days written notice of Contractor's intention to stop performance under the Agreement. If the Work is so stopped for a period of one hundred and twenty (120) consecutive days through no act or fault of the Contractor or its Subcontractors or their agents or employees or any other persons performing portions of the Work under contract with the Contractor or any Subcontractor, the Contractor may terminate this Agreement by giving 66 16-6620 Clam Pass Dredging Packet Page -122- 3/22/2016 11.C. written notice to Owner of Contractor's intent to terminate this Agreement. If Owner -� does not cure its default within fourteen (14) days after receipt of Contractor's written notice, Contractor may, upon fourteen (14) additional days' written notice to the Owner, terminate the Agreement and recover from the Owner payment for Work performed through the termination date, but in no event shall Contractor be entitled to payment for Work not performed or any other damages from Owner. 19. TERMINATION FOR CONVENIENCE AND RIGHT OF SUSPENSION. 19.1 Owner shall have the right to terminate this Agreement without cause upon seven (7) calendar days written notice to Contractor. In the event of such termination for convenience, Contractor's recovery against Owner shall be limited to that portion of the Contract Amount earned through the date of termination, together with any retainage withheld and reasonable termination expenses incurred, but Contractor shall not be entitled to any other or further recovery against Owner, including, but not limited to, damages or any anticipated profit on portions of the Work not performed. 19.2 Owner shall have the right to suspend all or any portions of the Work upon giving Contractor not less than two (2) calendar days' prior written notice of such suspension. If all or any portion of the Work is so suspended, Contractor's sole and exclusive remedy shall be to seek an extension of time to its schedule in accordance with the procedures set forth in the Contract Documents. In no event shall the Contractor be entitled to any additional compensation or damages. Provided, however, if the ordered suspension exceeds six (6) months, the Contractor shall have the right to terminate the Agreement with respect to that portion of the Work which is subject to the ordered suspension. 20. COMPLETION. 20.1 When the entire Work (or any portion thereof designated in writing by Owner) is ready for its intended use, Contractor shall notify Project Manager in writing that the entire Work (or such designated portion) is substantially complete. Within a reasonable time thereafter, Owner, Contractor and Design Professional shall make an inspection of the Work (or designated portion thereof) to determine the status of completion. If Owner, after conferring with the Design Professional, does not consider the Work (or designated portion) substantially complete, Project Manager shall notify Contractor in writing giving the reasons therefore. If Owner, after conferring with the Design Professional, considers the Work (or designated portion) substantially complete, Project Manager shall prepare and deliver to Contractor a Certificate of Substantial Completion which shall fix the date of Substantial Completion for the entire Work (or designated portion thereof) and include a tentative punch-list of items to be completed or corrected by Contractor before final payment. Owner shall have the right to exclude Contractor from the Work and Project site (or designated portion thereof) after the date of Substantial Completion, but Owner shall allow Contractor reasonable access to complete or correct items on the tentative punch-list. The Project Manager, shall coordinate with the Contractor the return of any surplus assets, including materials, supplies, and equipment. 67 16-6620 Clam Pass Dredging Packet Page -123- 3/22/2016 11.C. 20.2 Upon receipt of written certification by Contractor that the Work is completed in accordance with the Contract Documents and is ready for final inspection and acceptance, Project Manager and Design Professional will make such inspection and, if they find the Work acceptable and fully performed under the Contract Documents shall promptly approve payment, recommending that, on the basis of their observations and inspections, and the Contractor's certification that the Work has been completed in accordance with the terms and conditions of the Contract Documents, that the entire balance found to be due Contractor is due and payable. Neither the final payment nor the retainage shall become due and payable until Contractor submits: (1) Receipt of Contractor's Final Application for Payment. (2) The Release and Affidavit in the form attached as Exhibit C. (3) Consent of surety to final payment. (4) Receipt of the final payment check list. (5) If required by Owner, other data establishing payment or satisfaction of all obligations, such as receipts, releases and waivers of liens, arising out of the Contract Documents, to the extent and in such form as may be designated by Owner. Owner reserves the right to inspect the Work and make an independent determination as to the Work's acceptability, even though the Design Professional may have issued its recommendations. Unless and until the Owner is completely satisfied, neither the final payment nor the retainage shall become due and payable. 21. WARRANTY. 21.1 Contractor shall obtain and assign to Owner all express warranties given to Contractor or any subcontractors by any subcontractor or material men supplying materials, equipment or fixtures to be incorporated into the Project. Contractor warrants to Owner that any materials and equipment furnished under the Contract Documents shall be new unless otherwise specified, and that all Work shall be of good quality, free from all defects and in conformance with the Contract Documents. Contractor further warrants to Owner that all materials and equipment furnished under the Contract Documents shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable manufacturers, fabricators, suppliers or processors except as otherwise provided for in the Contract Documents. If, within one (1) year after Substantial Completion, any Work is found to be defective or not in conformance with the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner. Contractor shall also be responsible for and pay for replacement or repair of adjacent materials or Work which may be damaged as a result of such replacement or repair. Further, in the event of an emergency, Owner may commence to correct any defective Work, without prior notice to Contractor, at Contractor's expense. These warranties are in addition to those implied warranties to which Owner is entitled as a matter of law. 21.2 No later than 30 days prior to expiration of the warranty, the Project Manager, or another representative of the Owner, shall conduct an inspection of the warranted work 68 16-6620 Clam Pass Dredging Packet Page -124- 3/22/2016 11.C. to verify compliance with the requirements of the Agreement. The Contractor's Representative shall be present at the time of inspection and shall take remedial actions to correct any deficiencies noted in the inspection. Failure of the Contractor to correct the cited deficiencies shall be grounds for the Owner to disqualify the Contractor from future bid opportunities with the Owner, in addition to any other rights and remedies available to Owner. 22. TESTS AND INSPECTIONS. 22.1 Owner, Design Professional, their respective representatives, agents and employees, and governmental agencies with jurisdiction over the Project shall have access at all times to the Work, whether the Work is being performed on or off of the Project site, for their observation, inspection and testing. Contractor shall provide proper, safe conditions for such access. Contractor shall provide Project Manager with timely notice of readiness of the Work for all required inspections, tests or approvals. 22.2 If the Contract Documents or any codes, laws, ordinances, rules or regulations of any public authority having jurisdiction over the Project requires any portion of the Work to be specifically inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish Project Manager the required certificates of inspection, testing or approval. All inspections, tests or approvals shall be performed in a manner and by organizations acceptable to the Project Manager. 22.3 Contractor is responsible, without reimbursement from Owner, for re-inspection fees and costs; to the extent such re-inspections are due to the fault or neglect of Contractor. 22.4 If any Work that is to be inspected, tested or approved is covered without written concurrence from the Project Manager, such work must, if requested by Project Manager, be uncovered for observation. Such uncovering shall be at Contractor's expense unless Contractor has given Project Manager timely notice of Contractor's intention to cover the same and Project Manager has not acted with reasonable promptness to respond to such notice. If any Work is covered contrary to written directions from Project Manager, such Work must, if requested by Project Manager, be uncovered for Project Manager's observation and be replaced at Contractor's sole expense. 22.5 The Owner shall charge to Contractor and may deduct from any payments due Contractor all engineering and inspection expenses incurred by Owner in connection with any overtime work. Such overtime work consisting of any work during the construction period beyond the regular eight (8) hour day and for any work performed on Saturday, Sunday or holidays. 22.6 Neither observations nor other actions by the Project Manager or Design Professional nor inspections, tests or approvals by others shall relieve Contractor from 69 16-6620 Clam Pass Dredging Packet Page -125- 3/22/2016 11.C. Contractor's obligations to perform the Work in accordance with the Contract Documents. 23. DEFECTIVE WORK. 23.1 Work not conforming to the requirements of the Contract Documents or any warranties made or assigned by Contractor to Owner shall be deemed defective Work. If required by Project Manager, Contractor shall as directed, either correct all defective Work, whether or not fabricated, installed or completed, or if the defective Work has been rejected by Project Manager, remove it from the site and replace it with non- defective Work. Contractor shall bear all direct, indirect and consequential costs of such correction or removal (including, but not limited to fees and charges of engineers, architects, attorneys and other professionals) made necessary thereby, and shall hold Owner harmless for same. 23.2 If the Project Manager considers it necessary or advisable that covered Work be observed by Design Professional or inspected or tested by others and such Work is not otherwise required to be inspected or tested, Contractor, at Project Manager's request, shall uncover, expose or otherwise make available for observation, inspection or tests as Project Manager may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is defective, Contractor shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction (including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals), and Owner shall be entitled to an appropriate decrease in the Contract Amount. If, however, such Work is not found to be defective, Contractor shall be allowed an increase in the Contract Amount and/or an extension to the Contract Time, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction. 23.3 If any portion of the Work is defective, or if Contractor fails to supply sufficient skilled workers, suitable materials or equipment or fails to finish or perform the Work in such a way that the completed Work will conform to the Contract Documents, Project Manager may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. The right of Project Manager to stop the Work shall be exercised, if at all, solely for Owner's benefit and nothing herein shall be construed as obligating the Project Manager to exercise this right for the benefit of Design Engineer, Contractor, or any other person. 23.4 Should the Owner determine, at its sole opinion, it is in the Owner's best interest to accept defective Work, the Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to the Owner's evaluation of and determination to accept defective Work. If such determination is rendered prior to final payment, a Change Order shall be executed evidencing such acceptance of such defective Work, incorporating the necessary revisions in the Contract Documents and reflecting an appropriate decrease in the Contract Amount. If the Owner accepts such defective 70 16-6620 Clam Pass Dredging Packet Page -126- 3/22/2016 11 .C. Work after final payment, Contractor shall promptly pay Owner an appropriate amount to adequately compensate Owner for its acceptance of the defective Work. 23.5 If Contractor fails, within a reasonable time after the written notice from Project Manager, to correct defective Work or to remove and replace rejected defective Work as required by Project Manager or Owner, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any of the provisions of the Contract Documents, Owner may, after seven (7) days written notice to Contractor, correct and remedy any such deficiency. Provided, however, Owner shall not be required to give notice to Contractor in the event of an emergency. To the extent necessary to complete corrective and remedial action, Owner may exclude Contractor from any or all of the Project site, take possession of all or any part of the Work, and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Project site and incorporate in the Work all materials and equipment stored at the Project site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Design Professional and their respective representatives, agents, and employees such access to the Project site as may be necessary to enable Owner to exercise the rights and remedies under this paragraph. All direct, indirect and consequential costs of Owner in exercising such rights and remedies shall be charged against Contractor, and a Change Order shall be issued, incorporating the necessary revisions to the Contract Documents, including an appropriate decrease to the Contract Amount. Such direct, indirect and consequential costs shall include, but not be limited to, fees and charges of engineers, architects, attorneys and other professionals, all court costs and all costs of repair and replacement of work of others destroyed or damaged by correction, removal or replacement of Contractor's defective Work. Contractor shall not be allowed an extension of the Contract Time because of any delay in performance of the Work attributable to the exercise by Owner of Owner's rights and remedies hereunder. 24. SUPERVISION AND SUPERINTENDENTS. 24.1 Contractor shall plan, organize, supervise, schedule, monitor, direct and control the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be responsible to see that the finished Work complies accurately with the Contract Documents. Contractor shall keep on the Work at all times during its progress a competent resident superintendent, who shall be subject to Owner's approval and not be replaced without prior written notice to Project Manager except under extraordinary circumstances. The superintendent shall be employed by the Contractor and be the Contractor's representative at the Project site and shall have authority to act on behalf of Contractor. All communications given to the superintendent shall be as binding as if given to the Contractor. Owner shall have the right to direct Contractor to remove and replace its Project superintendent, with or without cause. Attached to the Agreement as Exhibit N is a list identifying Contractor's Project Superintendent and all of Contractor's key personnel who are assigned to the Project; such identified personnel shall not be removed without Owner's prior written approval, and if so removed must be immediately replaced with a person acceptable to Owner. 71 16-6620 Clam Pass Dredging Packet Page -127- 3/22/2016 11.C. 24.2 Contractor shall have a competent superintendent on the project at all times whenever contractor's work crews, or work crews of other parties authorized by the Project Manager are engaged in any activity whatsoever associated with the Project. Should the Contractor fail to comply with the above condition, the Project Manager shall, at his discretion, deduct from the Contractor's monthly pay estimate, sufficient moneys to account for the Owner's loss of adequate project supervision, not as a penalty, but as liquidated damages, separate from the liquidated damages described in Section 5.B, for services not rendered. 25. PROTECTION OF WORK. 25.1 Contractor shall fully protect the Work from loss or damage and shall bear the cost of any such loss or damage until final payment has been made. If Contractor or any one for whom Contractor is legally liable for is responsible for any loss or damage to the Work, or other work or materials of Owner or Owner's separate contractors, Contractor shall be charged with the same, and any moneys necessary to replace such loss or damage shall be deducted from any amounts due Contractor. 25.2 Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 25.3 Contractor shall not disturb any benchmark established by the Owner or Design Professional with respect to the Project. If Contractor, or its subcontractors, agents or anyone for whom Contractor is legally liable, disturbs the Owner or Design Professional's benchmarks, Contractor shall immediately notify Project Manager and Design Professional. The Owner or Design Professional shall re-establish the benchmarks and Contractor shall be liable for all costs incurred by Owner associated therewith. 26. EMERGENCIES. 26.1 In the event of an emergency affecting the safety or protection of persons or the Work or property at the Project site or adjacent thereto, Contractor, without special instruction or authorization from Owner or Design Professional is obligated to act to prevent threatened damage, injury or loss. Contractor shall give Project Manager written notice within forty-eight (48) hours after Contractor knew or should have known of the occurrence of the emergency, if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. If the Project Manager determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Change Order shall be issued to document the consequences of the changes or variations. If Contractor fails to provide the forty-eight (48) hour written notice noted above, the Contractor shall be deemed to have waived any right it otherwise may have had to seek an adjustment to the Contract Amount or an extension to the Contract Time. 27. USE OF PREMISES. 72 16-6620 Clam Pass Dredging Packet Page -128- 3/22/2016 11.C. 27.1 Contractor shall maintain all construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in and permitted by the Contract Documents and other lands and areas permitted by law, rights of way, permits and easements, and shall not unreasonably encumber the Project site with construction equipment or other material or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or any land or areas contiguous thereto, resulting from the performance of the Work. 28. SAFETY. 28.1 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 28.1.1 All employees on or about the project site and other persons and/or organizations who may be affected thereby; 28.1.2 All the Work and materials and equipment to be incorporated therein, whether in storage on or off the Project site; and 28.1.3 Other property on Project site or adjacent thereto, including trees, shrubs, walks, pavements, roadways, structures, utilities and any underground structures or improvements not designated for removal, relocation or replacement in the Contract Documents. 28.2 Contractor shall comply with all applicable codes, laws, ordinances, rules and regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss. Contractor shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of underground structures and improvements and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation or replacement of their property. Contractor's duties and responsibilities for the safety and protection of the Work shall continue until such time as the Work is completed and final acceptance of same by Owner has occurred. All new electrical installations shall incorporate NFPA 70E Short Circuit Protective Device Coordination and Arc Flash Studies where relevant as determined by the engineer. All electrical installations shall be labeled with appropriate NFPA 70E arch flash boundary and PPE Protective labels. 28.3. Contractor shall designate a responsible representative located on a full time basis at the Project site whose duty shall be the prevention of accidents. This person 73 16-6620 Clam Pass Dredging Packet Page -129- 3/22/2016 11 .C. .-. shall be Contractor's superintendent unless otherwise designated in writing by Contractor to Owner. 28.4 Alcohol, drugs and all illegal substances are strictly prohibited on any Owner property. All employees of Contractor, as well as those of all subcontractors and those of any other person or entity for whom Contractor is legally liable (collectively referred to herein as "Employees"), shall not possess or be under the influence of any such substances while on any Owner property. Further, Employees shall not bring on to any Owner property any gun, rifle or other firearm, or explosives of any kind. 28.5 Contractor acknowledges that the Work may be progressing on a Project site which is located upon or adjacent to an existing Owner facility. In such event, Contractor shall comply with the following: 28.5.1 All Owner facilities are smoke free. Smoking is strictly prohibited; 28.5.2 All Employees shall be provided an identification badge by Contractor. Such identification badge must be prominently displayed on the outside of the Employees' clothing at all times. All Employees working at the Project site must log in and out with the Contractor each day; 28.5.3 Contractor shall strictly limit its operations to the designated work areas and shall not permit any Employees to enter any other portions of Owner's property without Owner's expressed prior written consent; 28.5.4 All Employees are prohibited from distributing any papers or other materials upon Owner's property, and are strictly prohibited from using any of Owner's telephones or other office equipment; 28.5.5 All Employees shall at all times comply with the OSHA regulations with respect to dress and conduct at the Project site. Further, all Employees shall comply with the dress, conduct and facility regulations issued by Owner's officials onsite, as said regulations may be changed from time to time; 28.5.6 All Employees shall enter and leave Owner's facilities only through the ingress and egress points identified in the site utilization plan approved by Owner or as otherwise designated, from time to time, by Owner in writing; 28.5.7 When requested, Contractor shall cooperate with any ongoing Owner investigation involving personal injury, economic loss or damage to Owner's facilities or personal property therein; 28.5.8 The Employees may not solicit, distribute or sell products while on Owner's property. Friends, family members or other visitors of the Employees are not permitted on Owner's property; and 74 16-6620 Clam Pass Dredging Packet Page -130- 3/22/2016 11.C. 28.5.9 At all times, Contractor shall adhere to Owner's safety and security regulations, and shall comply with all security requirements at Owner's facilities, as said regulations and requirements may be modified or changed by Owner from time to time. 29. PROJECT MEETINGS. Prior to the commencement of Work, the Contractor shall attend a pre-construction conference with the Project Manager, Design Professional and others as appropriate to discuss the Progress Schedule, procedures for handling shop drawings and other submittals, and for processing Applications for Payment, and to establish a working understanding among the parties as to the Work. During the prosecution of the Work, the Contractor shall attend any and all meetings convened by the Project Manager with respect to the Project, when directed to do so by Project Manager or Design Professional. The Contractor shall have its subcontractors and suppliers attend all such meetings (including the pre-construction conference) as may be directed by the Project Manager. 30. VENDOR PERFORMANCE EVALUATION. Owner has implemented a Vendor Performance Evaluation System for all contracts awarded in excess of $25,000. To this end, vendors will be evaluated on their performance upon completion/termination of this Agreement. 31. MAINTENANCE OF TRAFFIC POLICY. For all projects that are conducted within a Collier County Right-of-Way, the Contractor shall provide and erect Traffic Control Devices as prescribed in the current edition of the Manual On Uniform Traffic Control Devices (MUTCD), where applicable on local roadways and as prescribed in the Florida Department of Transportations Design Standards (DS), where applicable on state roadways. These projects shall also comply with Collier County's Maintenance of Traffic Policy, #5807, incorporated herein by reference. Copies are available through Risk Management and/or Purchasing Departments, and is available on-line at colliergov.net/purchasing. The Contractor will be responsible for obtaining copies of all required manuals, MUTCD, FDOT Roadway & Traffic Design Standards Indexes, or other related documents, so to become familiar with their requirements. Strict adherence to the requirements of the Maintenance of Traffic ("MOT") policy will be enforced under this Contract. All costs associated with the Maintenance of Traffic shall be included on the line item on the bid page. If MOT is required, MOT is to be provided within ten (10) days of receipt of Notice of Award. 32. SALES TAX SAVINGS AND DIRECT PURCHASE. 75 16-6620 Clam Pass Dredging Packet Page -131- 3/22/2016 11.C. 32.1 Contractor shall pay all sales, consumer, use and other similar taxes associated with the Work or portions thereof, which are applicable during the performance of the Work. No markup shall be applied to sales tax. Additionally, as directed by Owner and at no additional cost to Owner, Contractor shall comply with and fully implement the sales tax savings program with respect to the Work, as set forth in section 32.2 below: 32.2 Notwithstanding anything herein to the contrary, because Owner is exempt from sales tax and may wish to generate sales tax savings for the Project, Owner reserves the right to make direct purchases of various construction materials and equipment included in the Work ("Direct Purchase"). Contractor shall prepare purchase orders to vendors selected by Contractor, for execution by Owner, on forms provided by Owner. Contractor shall allow two weeks for execution of all such purchase orders by Owner. Contractor represents and warrants that it will use its best efforts to cooperate with Owner in implementing this sales tax savings program in order to maximize cost savings for the Project. Adjustments to the Contract Amount will be made by appropriate Change Orders for the amounts of each Owner Direct Purchase, plus the saved sales taxes. A Change Order shall be processed promptly after each Direct Purchase, or group of similar or related Direct Purchases, unless otherwise mutually agreed upon between Owner and Contractor. With respect to all Direct Purchases by Owner, Contractor shall remain responsible for coordinating, ordering, inspecting, accepting delivery, storing, handling, installing, warranting and quality control for all Direct Purchases. Notwithstanding anything herein to the contrary, Contractor expressly acknowledges and agrees that all Direct Purchases shall be included within and covered by Contractor's warranty to Owner to the same extent as all other warranties provided by Contractor pursuant to the terms of the Contract Documents. In the event Owner makes a demand against Contractor with respect to any Direct Purchase and Contractor wishes to make claim against the manufacturer or supplier of such Direct Purchase, upon request from Contractor Owner shall assign to Contractor any and all warranties and Contract rights Owner may have from any manufacturer or supplier of any such Direct Purchase by Owner. 32.3 Bidder represents and warrants that it is aware of its statutory responsibilities for sale tax under Chapter 212, Florida Statutes, and for its responsibilities for Federal excise taxes. 33. SUBCONTRACTS. 33.1 Contractor shall review the design and shall determine how it desires to divide the sequence of construction activities. Contractor will determine the breakdown and composition of bid packages for award of subcontracts, based on the current Project Milestone Schedule, and shall supply a copy of that breakdown and composition to Owner and Design Professional for their review and approval prior to submitting its first Application for Payment. Contractor shall take into consideration such factors as natural and practical lines of severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, community relations and any other factors pertinent to saving time and costs. 76 16-6620 Clam Pass Dredging Packet Page -132- 3/22/2016 11.C. 33.2 A Subcontractor is any person or entity who is performing, furnishing, supplying or providing any portion of the Work pursuant to a contract with Contractor. Contractor shall be solely responsible for and have control over the Subcontractors. Contractor shall negotiate all Change Orders, Work Directive Changes, Field Orders and Requests for Proposal, with all affected Subcontractors and shall review the costs of those proposals and advise Owner and Design Professional of their validity and reasonableness, acting in Owner's best interest, prior to requesting approval of any Change Order from Owner. All Subcontractors performing any portion of the Work on this Project must be "qualified" as defined in Collier County Ordinance 2013-69, meaning a person or entity that has the capability in all respects to perform fully the Agreement requirements with respect to its portion of the Work and has the integrity and reliability to assure good faith performance. 33.3 In addition to those Subcontractors identified in Contractor's bid that were approved by Owner, Contractor also shall identify any other Subcontractors, including their addresses, licensing information and phone numbers, it intends to utilize for the Project prior to entering into any subcontract or purchase order and prior to the Subcontractor commencing any work on the Project. The list identifying each Subcontractor cannot be modified, changed, or amended without prior written approval from Owner. Any and all Subcontractor work to be self-performed by Contractor must be approved in writing by Owner in its sole discretion prior to commencement of such work. Contractor shall continuously update that Subcontractor list, so that it remains current and accurate throughout the entire performance of the Work. 33.4 Contractor shall not enter into a subcontract or purchase order with any Subcontractor, if Owner reasonably objects to that Subcontractor. Contractor shall not be required to contract with anyone it reasonably objects to. Contractor shall keep on file a copy of the license for every Subcontractor and sub-subcontractor performing any portion of the Work, as well as maintain a log of all such licenses. All subcontracts and purchase orders between Contractor and its Subcontractors shall be in writing and are subject to Owner's approval. Further, unless expressly waived in writing by Owner, all subcontracts and purchase orders shall (1) require each Subcontractor to be bound to Contractor to the same extent Contractor is bound to Owner by the terms of the Contract Documents, as those terms may apply to the portion of the Work to be performed by the Subcontractor, (2) provide for the assignment of the subcontract or purchase order from Contractor to Owner at the election of Owner upon termination of Contractor, (3) provide that Owner will be an additional indemnified party of the subcontract or purchase order, (4) provide that Owner, Collier County Government, will be an additional insured on all liability insurance policies required to be provided by the Subcontractor except workman's compensation and business automobile policies, (5) assign all warranties directly to Owner, and (6) identify Owner as an intended third-party beneficiary of the subcontract or purchase order. Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the Subcontractor will be bound. Each Subcontractor shall similarly make copies of such documents available to its sub-subcontractors. 77 16-6620 Clam Pass Dredging Packet Page -133- 3/22/2016 11 .C. 33.5 Each Subcontractor performing work at the Project Site must agree to provide field (on-site) supervision through a named superintendent for each trade (e.g., general concrete forming and placement, masonry, mechanical, plumbing, electrical and roofing) included in its subcontract or purchase order. In addition, the Subcontractor shall assign and name a qualified employee for scheduling direction for its portion of the Work. The supervisory employees of the Subcontractor (including field superintendent, foreman and schedulers at all levels) must have been employed in a supervisory (leadership) capacity of substantially equivalent level on a similar project for at least two years within the last five years. The Subcontractor shall include a resume of experience for each employee identified by it to supervise and schedule its work. 33.6 Unless otherwise expressly waived by Owner in writing, all subcontracts and purchase orders shall provide: 33.6.1 That the Subcontractor's exclusive remedy for delays in the performance of the subcontract or purchase order caused by events beyond its control, including delays claimed to be caused by Owner or Design Professional or attributable to Owner or Design Professional and including claims based on breach of contract or negligence, shall be an extension of its contract time. 33.6.2 In the event of a change in the work, the Subcontractor's claim for adjustments in the contract sum are limited exclusively to its actual costs for such changes plus no more than 10% for overhead and profit. 33.6.3 The subcontract or purchase order, as applicable, shall require the Subcontractor to expressly agree that the foregoing constitute its sole and exclusive remedies for delays and changes in the Work and thus eliminate any other remedies for claim for increase in the contract price, damages, losses or additional compensation. Further, Contractor shall require all Subcontractors to similarly incorporate the terms of this Section 33.6 into their sub-subcontracts and purchase orders. 33.6.4 Each subcontract and purchase order shall require that any claims by Subcontractor for delay or additional cost must be submitted to Contractor within the time and in the manner in which Contractor must submit such claims to Owner, and that failure to comply with such conditions for giving notice and submitting claims shall result in the waiver of such claims. 34. CONSTRUCTION SERVICES. 34.1 Contractor shall maintain at the Project site, originals or copies of, on a current basis, all Project files and records, including, but not limited to, the following administrative records: 34.1.1 Subcontracts and Purchase Orders 34.1.2 Subcontractor Licenses 34.1.3 Shop Drawing Submittal/Approval Logs 34.1.4 Equipment Purchase/Delivery Logs 78 16-6620 Clam Pass Dredging Packet Page -134- 3/22/2016 11 .C. 34.1.5 Contract Drawings and Specifications with Addenda 34.1.6 Warranties and Guarantees 34.1.7 Cost Accounting Records 34.1.8 Labor Costs 34.1.9 Material Costs 34.1.10 Equipment Costs 34.1.11 Cost Proposal Request 34.1.12 Payment Request Records 34.1.13 Meeting Minutes 34.1.14 Cost-Estimates 34.1.15 Bulletin Quotations 34.1.16 Lab Test Reports 34.1.17 Insurance Certificates and Bonds 34.1.18 Contract Changes 34.1.19 Permits 34.1.20 Material Purchase Delivery Logs 34.1.21 Technical Standards 34.1.22 Design Handbooks 34.1.23 "As-Built" Marked Prints 34.1.24 Operating & Maintenance Instruction 34.1.25 Daily Progress Reports 34.1.26 Monthly Progress Reports 34.1.27 Correspondence Files 34.1.28 Transmittal Records 34.1.29 Inspection Reports 34.1.30 Punch Lists 34.1.31 PMIS Schedule and Updates 34.1.32 Suspense (Tickler) Files of Outstanding Requirements The Project files and records shall be available at all times to Owner and Design Professional or their designees for reference, review or copying. 34.2 Contractor Presentations At the discretion of the County, the Contractor may be required to provide a brief update on the Project to the Collier County Board of County Commissioners, "Board", up to two (2) times per contract term. Presentations shall be made in a properly advertised Public Meeting on a schedule to be determined by the County Manager or his designee. Prior to the scheduled presentation date, the Contractor shall meet with appropriate County staff to discuss the presentation requirements and format. Presentations may include, but not be limited to, the following information: Original contract amount, project schedule, project completion date and any changes to the aforementioned since Notice to Proceed was issued. 35. SECURITY. 79 16-6620 Clam Pass Dredging Packet Page -135- 3/22/2016 11.C. If required, Vendor/ Contractor/ Proposer shall be responsible for the costs of providing background checks by the Collier County Facilities Management Department for all employees that shall provide services to the County under this Agreement. This may include, but not be limited to, checking federal, state and local law enforcement records, including a state and FBI fingerprint check, credit reports, education, residence and employment verifications and other related records. Contractor shall be required to maintain records on each employee and make them available to the County for at least four (4) years. 36. VENUE. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 37. VALUE ENGINEERING. All projects with an estimated cost of $10 million or more shall be reviewed for consideration of a Value Engineering (VE) study conducted during project development. A "project" shall be defined as the collective contracts, which may include but not be limited to: design, construction, and construction, engineering and inspection (CEI) services. Additionally, any project with an estimated construction value of $2 million or more may be reviewed for VE at the discretion of the County. 38. ABOVEGROUND/UNDERGROUND TANKS. 38.1 The contractor shall ensure compliance with all NFPA regulations: specifically 110 & 30/30A; FDEP chapter 62 regulations: specifically 761, 762, 777, and 780; 376 & 403 Florida Statutes; and STI, UL, PEI, ASME, NACE, NLPA, NIST & API referenced standards pertaining to the storage of hazardous materials and petroleum products. 38.2 The contractor shall notify the Solid & Hazardous Waste Management Department (SHWMD) prior to the installation, removal, or maintenance of any storage tank, including day tanks for generators, storing / will be storing petroleum products or hazardous materials. The contractor shall provide a 10 day and 48 hour notice to SHWMD 239-252-2508 prior to commencement. The contractor shall provide the plans pertaining to the storage tank systems containing hazardous materials / petroleum products to the SHWMD prior to plans submittal to a permitting entity and then SHWMD must approve the plans prior to contractor's submittal for permitting. 39. STANDARDS OF CONDUCT: PROJECT MANAGER, SUPERVISOR, EMPLOYEES. 80 16-6620 Clam Pass Dredging Packet Page-136- 3/22/2016 11.C. The Contractor shall employ people to work on Owner's projects who are neat, clean, well-groomed and courteous. Subject to the Americans with Disabilities Act, Contractor shall supply competent employees who are physically capable of performing their employment duties. The Owner may require the Contractor to remove an employee it deems careless, incompetent, insubordinate or otherwise objectionable and whose continued employment on Owner's projects is not in the best interest of the County. 40. DISPUTE RESOLUTION. Prior to the initiation of any action or proceeding permitted by this Agreement to resolve disputes between the parties, the parties shall make a good faith effort to resolve any such disputes by negotiation. The negotiation shall be attended by representatives of Contractor with full decision-making authority and by Owner's staff person who would make the presentation of any settlement reached during negotiations to Owner for approval. Failing resolution, and prior to the commencement of depositions in any litigation between the parties arising out of this Agreement, the parties shall attempt to resolve the dispute through Mediation before an agreed-upon Circuit Court Mediator certified by the State of Florida. The mediation shall be attended by representatives of Contractor with full decision-making authority and by Owner's staff person or designee who would make the presentation of any settlement reached at mediation to Owner's Board for approval. Should either party fail to submit to mediation as required hereunder, the other party may obtain a court order requiring mediation under Section 44.102, Fla. Stat. Any suit or action brought by either party to this Agreement against the other party relating to or arising out of this Agreement must be brought in the appropriate federal or state courts in Collier County, Florida, which courts have sole and exclusive jurisdiction on all such matters. 81 16-6620 Clam Pass Dredging Packet Page -137- 3/22/2016 11 .C. EXHIBIT I: SUPPLEMENTAL TERMS AND CONDITIONS Supporting documents found at: http://bid.colliergov.net/bid/ and titled: N/A 82 16-6620 Clam Pass Dredging Packet Page -138- 3/22/2016 11.C. EXHIBIT J: TECHNICAL SPECIFICATIONS Supporting documents found at: http://bid.colliergov.netlbidl and titled: Exhibit J: Tech Specifications (Fill Volume) 83 16-6620 Clam Pass Dredging Packet Page -139- 3/22/2016 11 .C. EXHIBIT K: PERMITS Supporting documents found at: http://bid.colliergov.net/bid/ and titled: Exhibit K: Permit Applications 84 16-6620 Clam Pass Dredging Packet Page -140- 3/22/2016 11 .C. EXHIBIT L: STANDARD DETAILS The following items should be considered when submitting a bid for this project. All requirements listed below should be met or contractor should provide documentation that details specific reasons why the requirement cannot be met. 1. It is the County's desire to complete this project by May 1, 2016, the start of sea turtle nesting season. 2. If the completion of this project extends past the May 1st deadline, the contractor will be responsible for all costs pertaining to state and federal laws regarding sea turtle nesting and monitoring. 3. It is the County's desire to complete this project in as fast a timeline as possible. The County reserves the right to take project timeline into account when recommending award. 4. Final plans will be provided to the contractor as soon as they are available. 5. Final Army Corps of Engineers permits and Florida Department of Environmental Protection (FDEP) Notice to Proceed will be provided to the contractor as soon as they are available. 6. Final quantity of sand to be dredged and placed will be provided to the contractor as soon as it is available. 7. It is understood that the Clam Pass Boardwalk and public beach access may need to be closed while work is being completing in the immediate vicinity. The contractor shall make arrangements with the County to limit the amount of impact to the Boardwalk and public beach access. 85 16-6620 Clam Pass Dredging Packet Page -141- 3/22/2016 11 .C. EXHIBIT M: PLANS AND SPECIFICATIONS Supporting documents found at: http://bid.colliergov.net/bid/ and titled: Exhibit M: Clam Pass Dredging Permit Plans 86 16-6620 Clam Pass Dredging Packet Page -142- 3/22/2016 11.0. EXHIBIT N: CONTRACTOR'S KEY PERSONNEL ASSIGNED TO THE PROJECT Name Personnel Category Construction Superintendent Project Manager 87 16-6620 Clam Pass Dredging Packet Page -143- 3/22/2016 11.C. BID SCHEDULE Clam Pass Dredging Bid No. 16-6620 Engineer's Opinion of Probable Cost March 10, 2016 Unit of Item Description Measure Multiplier+ Unit Price Total 1 Mobilization&Demobilization* Lump Sum 1 $135,000 $135,000 2a Dredging and Disposal/Placement Cubic Yard 14,500 cy $14/cy $203,000 of Sand ** y y 2b Cut/Fill Grading along Inlet Banks Lump Sum 5,000 cy $30,000 $30,000 in Section A 3 Final Grading& Tilling Lump Sum $7,000 $7,000 4 Turbidity Monitoring Lump Sum 1 $25,000 $25,000 5 Post Construction Survey*** Lump Sum 1 $10,000 $10,000 6 Bond Lump Sum 1 $8,000 $8,000 7 Subtotal $418,000 8 Project Contingency 10% $41,800 9 Total $459,800 * Mobilization and Demobilization should include allowance for dredging access from Gulf of Mexico to Station 0+00 for ingress and egress and restoration of upland access areas. Sand dredged for ingress and egress will not exceed the dimensions of the design cut in Section A with overdepth of 6 inches, and the sand will be placed in the south beach disposal area per Technical Specifications. ** This quantity is based on the March 2016 survey by Agnoli, Barber and Brundage, Inc. and the design cut plus 6 inch overdepth from Stations 0+00 through 17+00. *** Post Construction Survey can be a combination of pay surveys completed under the direction of a registered Professional Surveyor and Mapper. Please state the shortest amount of time your firm can complete this project from receipt of a written Notice to Proceed from the County (in days). Packet Page -144- 3/22/2016 11.C. DEPARTMENT OF THE ARMY PERMIT Permittee: Collier County do Pelican Bay Services Division 801 Laurel Oak Drive Suite 302 Naples, Florida 34108 Permit No: SAJ-1996-02789 (SP-BEM) Issuing Office: U.S. Army Engineer District, Jacksonville NOTE: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate district or division office of the U.S. Army Corps of Engineers (Corps) having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer. You are authorized to perform work in accordance with the terms and conditions specified below. Project Description: �-• Maintenance Dredging: • Remove sand from Clam Pass and associated flood shoal areas in three sections (A, B, and C, see attached drawings) to restore tidal flow to the estuary. It is anticipated that approximately 11,800 cubic yards of sand would be removed from Clam Pass and flood shoal areas according to the most recent survey. This amount could vary in subsequent dredging events up to the maximum 22,800 cubic yards which can be contained within the proposed spoil templates. • Channel bottom width would be a maximum of 50 feet through the Pass (Dredging Section A) with a design depth of(-5.5) feet NAVD, which includes a 0.5 foot over dredge. Sections B and C would have a design depth of(-4.5) NAVD, which includes a 0.5 foot over dredge. The widths of Sections B and C would vary (see attached drawings). • A minimum of a 5 to 15 foot buffer would be maintained between the dredging and any mangrove prop roots adjacent to the dredge template. Additional buffers would be provided to seagrasses growing adjacent to the proposed template. • Dredging would be performed by backhoe, hydraulic dredge, or a combination of both. • The dredging work is expected to take between 45 and 75 days to complete. Packet Page -145- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMITTEE: Collier County do Pelican Bay Services Division PAGE 2 of 11 Beach Placement: • Placement of beach compatible sand on the adjacent beaches (up to 1500 feet north of Clam Pass and 2800 feet south of Clam Pass) as required by Chapter 161, Florida Statues. • Beach compatible spoil would be placed north and south of Clam Pass according to the project drawings. • Material excavated with a backhoe would be loaded into haul trucks and dumped onto the proper beach locations. • Material dredged hydraulically would be pumped to the appropriate beach location with a lateral berm extending ahead of the discharge parallel to the shoreline to reduce turbidity and mixing in the nearshore area. • Once placed, material will be spread and contoured with loaders, bulldozers, or other suitable beach grading equipment. • Any non-compatible material would be stockpiled within the staging area and hauled away to an appropriate upland disposal site landward of the Coastal Construction Control Line (CCCL). • Equipment access to the beach will occur from beach access locations previously used in this area approximately 2.4 miles north and 2 miles south of the Pass or may be delivered directly to the site by barge at the discretion of the contractor. • Work areas and travel corridors would be roped off to warn visitors to the beach of the construction operations and to keep them out of the work areas. • Undertaking the work would occur once it has been verified that the beach and access route are clear of any sea turtle nesting activities (from mid-October to November 1). Should additional blockage leading to closure of the Pass occur prior to that time, then additional coordination would be undertaken before the sea turtle nesting season completion to determine if the work can be undertaken without adversely impacting any remaining sea turtle nests. The work described above is to be completed in accordance with the 15 pages of drawings (Attachment A) and 7 attachments affixed at the end of this permit instrument. Project Location: The project would affect waters of the United States associated with Clam Pass and the Gulf of Mexico. The project site is located in Clam Pass and the Gulf of Mexico, Sections 8 and 9, Township 49 South, Range 25 East, City of Naples, Collier County, Florida. Packet Page -146- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMITTEE: Collier County c/o Pelican Bay Services Division PAGE 3 of 11 Directions to site: From U.S. 41/Tamiami Trail, head west on Pine Ridge Road, which dead-ends into the Clam Pass Parking Lot. Access to the beach is via tram or walking. Clam Pass is located approximately .20 miles north of the beach path. Approximate Central Coordinates: Latitude: 26.2197 North Longitude: 81.8169 West Permit Conditions General Conditions: 1. The time limit for completing the work authorized ends on March xx, 2026. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and State coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature and the mailing address of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions (Attachment B). Packet Page -147- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMITTEE: Collier County c/o Pelican Bay Services Division PAGE 4 of 11 6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit. Special Conditions: 1 . Reporting Address: The Permittee shall submit all reports, notifications, documentation and correspondence required by the general and special conditions of this permit to the following address: a. For standard mail: U.S. Army Corps of Engineers, Regulatory Division, Special Projects and Enforcement Branch, 1520 Royal Palm Square Blvd., Suite 310, Fort Myers, FL 33919. b. For electronic mail CESAJ-ComplyDocs @usace.army.mil (not to exceed 10 MB). The Permittee shall reference this permit number, SAJ-1996-02789(SP-BEM), on all submittals. 2. As-Built Certification: Within 60 days of completion of the work authorized by this permit, the Permittee shall submit as-built drawings of the authorized work and a completed "As-Built Certification By Professional Engineer" form (Attachment C) to the Corps. The as-built drawings shall be signed and sealed by a registered professional engineer and include the following: a. A plan view drawing of the location of the authorized work footprint, as shown on the permit drawings, with transparent overlay of the work as constructed in the same scale as the permit drawings on 8'/2-inch by 11- inch sheets. The plan view drawing should show all "earth disturbance," including wetland impacts and water management structures. b. A list of any deviations between the work authorized by this permit and the work as constructed. In the event that the completed work deviates, in any manner, from the authorized work, describe on the attached "As- Built Certification By Professional Engineer"form the deviations between the work authorized by this permit and the work as constructed. Clearly indicate on the as-built drawings any deviations that have been listed. Please note that the depiction and/or description of any deviations on the drawings and/or "As-Built Certification By Professional Engineer" form does not constitute approval of any deviations by the Corps. Packet Page -148- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMITTEE: Collier County c/o Pelican Bay Services Division PAGE 5 of 11 c. Include the Department of the Army permit number on all sheets submitted. 3. Clean Fill: The Permittee shall use only clean fill material for this project. The fill material shall be free from items such as trash, debris, automotive parts, asphalt, construction materials, concrete block with exposed reinforcement bars, and soils contaminated with any toxic substance, in toxic amounts in accordance with Section 307 of the Clean Water Act. 4. Regional Biological Opinion: The 1997 Gulf Regional Biological Opinion (GRBO) for swimming sea turtles, whales, and sturgeon can be found at the following web address: http://el.erdc.usace.army.mil/seaturtles/refs-bo.cfm. The GRBO contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with "incidental take" that is specified in the GRBO. Your authorization is conditional upon your compliance with all of the mandatory terms and conditions associated with the incidental take of the GRBO, which terms and conditions are incorporated by reference in the permit. Failure to comply with the terms and conditions associated with the incidental take of the GRBO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non-compliance with your Corps permit. However, depending on the affected species NMFS is the appropriate authority to determine compliance with the terms and conditions of its GRBO and with the Endangered Species Act (ESA). For further clarification on this point, you should contact NMFS. Should NMFS determine the conditions of the GRBO have been violated, normally they will enforce the violation of the ESA, or refer the matter to the Department of Justice. 5. Piping Plover Programmatic Biological Opinion (P"3B0): The permittee provided information to the FWS during consultation for the piping plover. The Permittee has reviewed the Reasonable and Prudent Measures, Terms and Conditions of the PA3BO, and agreed to follow the measures included to minimize impacts to piping plovers. The FWS provided concurrence that the maintenance dredging activities and sand placement activities are consistent with the PA3B0 provided the Permittee complies with the mandatory Terms and Conditions to implement the RPMs associated with incidental take for the piping plover. 6. Biological Opinion: This permit does not authorize the Permittee to take an endangered species, in particular the red knot. In order to legally take a listed species, the Permittee must have separate authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or a BO under ESA Section Packet Page -149- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMI T T EE: Collier County c/o Pelican Bay Services Division PAGE 6 of 11 7, with "incidental take" provisions with which you must comply). The enclosed (Attachment D) FWS Biological Opinion (BO) contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with "incidental take" that is also specified in the BO. Authorization under this permit is conditional upon compliance with all of the mandatory terms and conditions associated with incidental take of the enclosed BO, which terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute noncompliance with this permit. The FWS is the appropriate authority to determine compliance with the terms and conditions of its BO, and with the ESA. 7. Manatee Conditions: Manatee Conditions: The Permittee shall comply with the "Standard Manatee Conditions for In-Water Work— 2011". (Attachment E) 8. Sea Turtles and Smalltooth Sawfish Conditions: The Permittee shall comply with National Marine Fisheries Service's (NMFS) "Sea Turtle and Smalltooth Sawfish Construction Conditions" (2006). (Attachment F) 9. Seagrass Avoidance: There shall be no impacts to the existing seagrass beds located adjacent to the dredge area as a result of this project. No seagrass impacts shall occur as a result of construction operations, such as, but not limited to, propeller scouring; and vessel or barge anchoring, grounding or spudding. The Permittee shall be held liable for any unauthorized impacts. For any impacts caused by the construction operation, the Corps may require seagrass restoration and mitigation. 10.Pre-construction survey: The permittee shall conduct a pre-construction seagrass survey/benthic assessment of the proposed dredge area (within the June 1 through September 30 time frame, if feasible). The purpose of the survey is to determine whether seagrass impacts can be avoided or minimized. Upon receipt of the survey, the Corps will determine whether the impacts can be avoided or minimized. If the impacts cannot be avoided, the Corps may require seagrass compensatory mitigation, monitoring, and contingency plans for any seagrass impacts. 11.Pre-Construction Meeting: The Permittee will schedule a pre-construction meeting with the Enforcement Section representative prior to the start of work to review the limitations and special conditions of the permit. During this meeting participants will be required to sign a form acknowledging knowledge and Packet Page -150- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMITTEE: Collier County do Pelican Bay Services Division PAGE 7of11 comprehension of what has been authorized and associated requirements. The Permittee should not start work prior to the pre-construction meeting without written approval by the Corps 12.Agencv Changes/Approvals: Should any other agency require and/or approve changes to the work authorized or obligated by this permit, the Permittee is advised a modification to this permit instrument is required prior to initiation of those changes. It is the Permittee's responsibility to request a modification of this permit from the Fort Myers Permits Section. The Corps reserves the right to fully evaluate, amend, and approve or deny the request for modification of this permit. Further Information: 1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to: (X) Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) (X) Section 404 of the Clean Water Act (33 U.S.C. 1344) ( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413) 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, State, or local authorizations required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal projects. 3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. Packet Page -151- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMiTTEE: Collier County do Pelican Bay Services Division PAGE 8 of 11 b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision: This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (see 4 above). c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use the suspension, modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measures ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the cost. 6. Extensions: General Condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a .-. prompt completion of the authorized activity or a reevaluation of the public interest Packet Page -152- 3/22/2016 11 .C. PERMIT NUMBER: SAJ_1996-02789(SP-BEM) PERMITTEE: Collier County do Pelican Bay Services Division PAGE 9 of 11 decision, the Corps will normally give favorable consideration to a request for an extension of this time limit. Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit. ( _., a, -f lir i (PERM T TEE) " (DATE) Neil Dorrill (PERMITTEE NAME-PRINTED) This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. / 2/4)"4 A'/ t77 /6/ ifft i t DISTRICT ENGINEER) (DATE) Jason A. Kirk, P.E., Colonel, U.S. Army District Commander Packet Page -153- 3/22/2016 11.C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERM1TTEE: Collier County do Pelican Bay Services Division PAGE 10 of 11 When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. (TRANSFEREE-SIGNATURE) (DATE) (NAME-PRINTED) (ADDRESS) (CITY, STATE, AND ZIP CODE) Packet Page -154- 3/22/2016 11 .C. PERMIT NUMBER: SAJ-1996-02789(SP-BEM) PERMIT T EE: Collier County do Pelican Bay Services Division PAGE 11 of 11 Attachments to Department of the Army Permit Number SAJ-1996-02789 A. PERMIT DRAWINGS: 15 pages B. WATER QUALITY CERTIFICATION: Specific Conditions of the water quality permit/certification (0296087-001-JC) in accordance with General Condition number 5 on page 2 of this DA permit. 19 pages. C. AS-BUILT CERTIFICATION BY PROFESSIONAL ENGINEER: 2 sheets: 2 pages. D. BIOLOGICAL OPINION: 19 pages E. STANDARD MANATEE CONDITIONS FOR IN-WATER WORK— 2011: 2 sheets. F. SEA TURTLE AND SMALLTOOTH SAWFISH CONSTRUCTION CONDITIONS: 1 page. Packet Page-155- 3/22/2016 11.C. ATTACHMENT A Packet Page -156- i 3/22/2016 11 .C. f, .Rs 1 n E ry N W 'Z Q 0 J J W p N 1fi Z, LL< ZZ Z Z Z>p ONdn ,2�a# d ' Z 1 4 m y m ZZ Z w� p 0��O 41 gVy`,Y./�,}fl pVp WtliSOS � SO O 4. 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E i74>F2 ,....* \ z i ,.., z 0 0 0 4 0 ., 1- 3- ..,5 z xxql; 4q3 92 a 2;a. a ritkitIrk &iii. 6.-: r— I 1 1 1 E IA et u(a 4 I- 0 0 0 4 0 ..- ...t.M M OAVII I I-.< "Ara i Packet Page-171- 3/22/2016 11 .C. ATTACHMENT B Packet Page -172- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 5 of 20 11. Within 30 days after completion of construction or completion of a subsequent maintenance event authorized by this permit, the Permittee shall submit to the Bureau of Beaches and Coastal Systems (JCP Compliance Officer) and the appropriate District office of the Department a written statement of completion and certification by a registered professional engineer. This certification shall state that all locations and elevations specified by the permit have been verified; the activities authorized by the permit have been performed in compliance with the plans and specifications approved as a part of the permit, and all conditions of the permit; or shall describe any deviations from the plans and specifications, and all conditions of the permit. When the completed activity differs substantially from the permitted plans, any substantial deviations shall be noted and explained on two paper copies and one electronic copy of as-built drawings submitted to the Bureau of Beaches and Coastal Systems (JCP Compliance Officer). SPECIFIC CONDITIONS: 1. All reports or notices relating to this permit shall be sent to the DEP, Bureau of Beaches and Coastal Systems,JCP Compliance Officer, 3900 Commonwealth Boulevard, Mail Station 300,Tallahassee, Florida 32399-3000 (e-mail address: JCP Compliance @dep.state.fl.us). 2. The Permittee shall not store or stockpile tools, equipment, materials, etc., within littoral zones or elsewhere within surface waters of the state without prior written approval from the Depai tnient. Storage, stockpiling or access of equipment on, in, over or through seagrass (or other aquatic vegetation)beds, or wetlands is prohibited unless within a work area or ingress/egress corridor specifically approved by this permit. Anchoring or spudding of vessels and barges within beds of aquatic vegetation or over hardbottom areas is also prohibited. 3. The Permittee shall not conduct project operations or store project-related equipment in, on or over dunes, or otherwise impact dune vegetation, outside the approved staging, beach access and dune nourishment areas designated in the permit drawings. 4. No work shall be conducted under this permit until the Permittee has received a written notice to proceed from the Depa(intent. At least 30 days prior to the requested date of issuance of the notice to proceed,the Permittee shall submit a written request for a Notice to Proceed and the following items for review and approval by the Department: a. The Permittee shall submit the final plans and specifications for this project, which must be consistent with the project description of this permit and the approved permit drawings. The Permittee shall point out any deviations from the project description or the approved permit drawings, and any significant changes would require a permit modification. Submittal shall include one (1)hardcopy (sized 11 inches by 17 inches or greater, with all text legible) and one(1) electronic copy of the final plans and specifications. The plans and specifications shall be accompanied by a letter n Packet Page -173- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 6 of 20 indicating the project name,the permit number,the type of construction activity, the specific type of equipment to be used,the anticipated volume of material to be moved (if applicable) and the anticipated schedule. Further, the Permittee shall specify any anticipated sites that will be used(such as a disposal or re-use location) and appropriate contact information for those facilities. The final plans and specifications submitted under this condition must comply with all conditions set forth in this permit. b. The final plans and specifications for each maintenance dredging event shall include a topographic survey of Clam Pass and adjacent beaches within the project area where activities are anticipated to occur. The survey shall be conducted within six months prior to the requested date of the issuance of the notice to proceed. The survey and deliverables shall be consistent with the Depar tinent's Monitoring Standards for Beach Erosion Control Projects. c. Turbidity monitoring qualifications. Construction at the project site shall be monitored closely by persons with professional experience in monitoring turbidity for beach restoration or nourishment projects to assure that turbidity levels do not exceed the compliance standards established in this permit. Also, an individual familiar with beach construction techniques and turbidity monitoring shall be present at all times when fill material is discharged on the beach. This individual shall have authority to alter construction techniques or shut down the dredging or beach construction operations if turbidity levels exceed the compliance standards established in this permit. The names and qualifications of those individuals performing these functions, along with 24-hour contact information, shall be submitted for approval. 5. Pre-Construction Conference. The Permittee shall conduct a pre-construction conference to review the specific conditions and monitoring requirements of this permit with Permittee's contractors,the engineer of record, the Florida Fish and Wildlife Conservation Commission(FWC), the U.S. Fish and Wildlife Service (FWS),the JCP compliance officer,the permitted sea turtle surveyor and other species surveyors as appropriate,prior to each construction event. The meeting will provide an opportunity for explanation and/or clarification of the protection measures as well as additional guidelines when construction occurs during nesting season, such as staging equipment and reporting within the work area as well as follow up meetings during construction. In order to ensure that appropriate representatives are available, at least twenty-one(21) days prior to the intended commencement date for the permitted construction,the Permittee is advised to contact the Department, and the other agency representatives listed below: DEP, Bureau of Beaches & Coastal Systems JCP Compliance Officer Mail Station 300 3900 Commonwealth Boulevard Packet Page -174- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 7 of 20 Tallahassee,Florida 32399-3000 phone: (850) 414-7716 e-mail: JCP Compliance @dep.state.fl.us DEP South District Office Submerged Lands &Environmental Resources 2295 Victoria Avenue Suite 364 Fort Myers, FL 33901-2896 (239)334-5600 Imperiled Species Management Section Florida Fish&Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 phone: (850) 922-4330 fax: (850) 921-4369 or email: marineturtle @myfwc.com The Permittee is also advised to schedule the pre-construction conference at least a week prior to the intended commencement date. At least seven (7)days in advance of the pre- construction conference,the Permittee shall provide written notification, advising the 1 participants (listed above) of the agreed-upon date, time and location of the meeting, and also provide a meeting agenda and a teleconference number. 6. Sediment quality will be assessed as outlined in the Sediment QA/AC plan(attached). Any occurrences of unacceptable material will be handled according to the protocols set forth in the Sediment QA/QC plan. The sediment testing result will be submitted to FDEP within 90 days following the completion of beach construction. Fish and Wildlife Protection Conditions for Dredging Activities: 7. In-water Activity. The 2011 Standard Manatee and Marine Turtle Construction Conditions for In-water Work shall be followed for all in-water activity. a. All personnel associated with the project shall be instructed about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees. The Permittee shall advise all construction personnel that there are civil. and criminal penalties for harming,harassing, or killing manatees which are protected under the Marine Mammal Protection Act,the Endangered Species Act, and the Florida Manatee Sanctuary Act. b. All vessels associated with the construction project shall operate at "Idle Speed/NoWake"at all times while in the immediate area and while in water where Packet Page -175- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC t-1 Page 8 of 20 the draft of the vessel provides less than a four-foot clearance from the bottom. All vessels shall follow routes of deep water whenever possible. c. Siltation or turbidity barriers shall be made of material in which manatees cannot become entangled, shall be properly secured, and shall be regularly monitored to avoid manatee entanglement or entrapment. Barriers must not impede manatee movement. d. All on-site project personnel are responsible for observing water-related activities for the presence of manatee(s). All in-water operations, including vessels, shall be shutdown if a manatee(s) comes within 50 feet of the operation. Activities shall not resume until the manatee(s) has moved beyond the 50-foot radius of the project operation, or until 30 minutes elapses if the manatee(s) has not reappeared within 50 feet of the operation. Animals shall not be herded away or harassed into leaving. e. Any collision with, or injury to, a manatee shall be reported immediately to the Florida Fish and Wildlife Conservation Commission (FWC) Hotline at 1-888-404- 3922. Collision and/or injury should also be reported to the U.S. Fish and Wildlife Service (FWS) in Jacksonville (1-904-731-3336) for north Florida or Vero Beach (1- ^0 772-562-3909) for south Florida, and to FWC at ImperiledSpecies @myFWC.com f. Temporary signs concerning manatees shall be posted prior to and during all in-water project activities. All signs are to be removed by the Permittee upon completion of the project. Temporary signs that have already been approved for this use by the FWC must be used. One sign which reads Caution: Boaters must be posted. A second sign measuring at least 8 ''/2" by 11" explaining the requirements for"Idle Speed/No Wake" and the shut down of in-water operations must be posted in a location prominently visible to all personnel engaged in water-related activities. These signs can be viewed at MyFWC.com/manatee. Questions concerning these signs can be sent to the email address listed above. Fish and Wildlife Protection Conditions for Beach Placement of Material: 8. Beach Maintenance. All excavations and temporary alterations of the beach topography shall be filled or leveled to the natural beach profile prior to 9 p.m. each day. 9. Seabird and Shorebird Surveys. Surveys shall be conducted to identify and document the presence of nesting seabirds and shorebirds (shorebird). Nesting shorebird surveys should be conducted by trained, dedicated individuals (Shorebird Observer)with proven shorebird identification skills and avian survey experience. Credentials of the Shorebird Observer shall be submitted to the FWC Regional Species Biologist(contact Packet Page -176- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 9 of 20 information attached) for review and approval. Shorebird Observers shall use the following survey protocols: a. Shorebird Observers shall review and become familiar with the general information and data collection protocol outlined on the FWC's Florida Shorebird Database website(www.FLShorebirdDatabase.org). An outline of data to be collected, including downloadable field data sheets,is available on the website. b. The nesting season is April 1 — September 1 for seabirds,but flightless young may be present through September. In addition, snowy plover may nest as early as February(found along the west coast of Florida) and the American oystercatcher may initiate nesting as early as March 15. Nesting season surveys must begin on the first day of nesting season(February 15 in potential snowy plover habitat, March 15 in areas where American oystercatchers have historically nested, or April 1 elsewhere) or 10 days prior to project commencement(including surveying activities and other pre-construction presence on the beach),whichever is later. Surveys shall be conducted through August or until all nesting activity has concluded, whichever is later. c. Nesting season surveys shall be conducted in all potential beach-nesting bird habitat within the project boundaries that may be impacted by construction or pre- construction activities during the nesting season. Portions of the project in which there is no potential for project-related activity during the nesting season may be excluded. d. During the pre-construction and construction phases of the project, surveys for detecting new nesting activity will be completed on a daily basis prior to movement of equipment, operation of vehicles, or other activities that could potentially disrupt nesting behavior or cause harm to the birds or their eggs or young. e. Surveys shall be conducted by walking the length of the project area and visually inspecting,using binoculars or spotting scope, for the presence of shorebirds exhibiting breeding behavior. i.) If an ATV or other vehicle is needed to cover large project areas, operators shall adhere to the FWC's Best Management Practices for Operating Vehicles on the Beach(http://myfwc.com/conservation/you-conserve/wildlife/beach- driving/). Specifically,the vehicle must be operated at a speed<6 mph and be run at or below the high-tide line. The Shorebird Observer shall stop at no greater than 200 meter intervals to visually inspect for nesting activity. /'1 Packet Page -177- 3/22/2016 11.C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 10 of 20 f. Once breeding is confirmed by the presence of a scrape, eggs, or young,the Shorebird Observer shall notify the FWC Regional Species Biologist(contact information attached) within 24 hours. All breeding activity shall be reported to the Florida Shorebird Database website within one week of data collection. 10. Seabird and Shorebird Buffer Zones and Travel Corridors. Within the project area,the Permittee shall establish a 300 foot-wide disturbance-free buffer zone around any location where shorebirds have been engaged in nesting behavior, including territory defense. All human disturbances shall be prohibited in the buffer zone. a. The width of the buffer zone shall be increased if birds appear agitated or disturbed by construction or other human activities. b. Site-specific buffers may be implemented upon approval by the FWC Regional Species Biologist(Ricardo Zambrano, at 561-625-5122) as needed. c. Reasonable and traditional pedestrian access should not be blocked where nesting birds will tolerate pedestrian traffic. This is generally the case with lateral movement of beach-goers walking parallel to the beach at or below the highest tide line. Pedestrian traffic may also be tolerated when nesting was initiated t—N within 300 feet of an established beach access pathway. The Permittee shall work with the FWC Regional Species Biologist to determine if pedestrian access can be accommodated without compromising nesting success. d. Designated buffer zones shall be identified with posts, twine, and clearly marked signs("No Entry") around the perimeter. The signs shall include the name and a phone number of the entity responsible for posting. Posts should not exceed 3' in height. Symbolic fencing(twine,string, or rope) should be placed between all posts at least 2 feet above the ground and rendered clearly visible to pedestrians. If pedestrian pathways are approved by the FWC Regional Species Biologist within the 300-foot buffer zone,these should be clearly marked. The posted area shall be maintained in good repair until nesting is completed or terminated. Although solitary nesters may leave the posted area with their chicks, the posted area continues to provide a potential refuge for the family until nesting is complete. Nesting is not considered to be completed until all chicks have fledged. e. No construction activities, movement of vehicles, or stockpiling of equipment shall be allowed within the buffer area. f. Heavy equipment and other vehicles should not be operated on the beach when flightless chicks are present outside the posted area. If movement of vehicles or equipment on the beach is necessary, the operator must be accompanied by the shorebird observer who will insure no flightless birds are in the path of the moving Packet Page -178- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 11 of 20 vehicle and no tracks capable of trapping flightless young result. 11. Seabird and Shorebird Notification. If shorebird nesting occurs within the project area, a bulletin board shall be placed and maintained in the construction staging area with the location map of the construction site showing the bird nesting areas and a warning, clearly visible, stating that"NESTING BIRDS ARE PROTECTED BY LAW INCLUDING THE FLORIDA ENDANGERED AND THREATENED SPECIES ACT AND THE STATE and FEDERAL MIGRATORY BIRD ACTS". 12. Marine Turtle Nest Surveys and Relocation. For sand placement projects that occur during the period from May 1 through October 31, daily early morning (before 9 a.m.) surveys shall be conducted, and eggs shall be relocated per the requirements below (a to c) until completion of the project. Monitoring and reporting shall continue throughout the nesting season and shall be conducted according to Post-construction Monitoring and Reporting Marine Turtle Protection Conditions included in this document. Nesting surveys shall be initiated 65 days prior to sand placement activities or by April 15, whichever is later. Nesting surveys and egg relocations shall continue through the end of the project or September 30,whichever is earlier. If nests are laid in areas where they may be affected by construction activities, eggs shall be relocated per the requirements listed in a through c below. Monitoring should resume the following nesting season and should be conducted according to Post-construction Monitoring and Reporting Marine Turtle Protection Conditions included in this document. a. Nesting surveys and egg relocations shall only be conducted by persons with prior experience and training in these activities and who are duly authorized to conduct such activities through a valid permit issued by FWC,pursuant to F.A.0 68E-1. Please contact FWC's Marine Turtle Management Program in Tequesta at MTP( myfwc.com for information on the permit holder in the project area. It is the responsibility of the Permittee to ensure that nesting surveys are completed. Nesting surveys shall be conducted daily between sunrise and 9 a.m. (in all time zones). b. Only those nests in the area where sand placement shall occur shall be relocated. Nest relocation shall not occur upon completion of sand placement. Nests requiring relocation shall be moved no later than 9 a.m. the morning following deposition to a nearby self-release beach site in a secure setting where artificial lighting will not interfere with hatchling orientation. Relocated nests shall not be placed in organized groupings. Relocated nests shall be randomly staggered along the length and width of the beach in settings that are not expected to experience daily inundation by high tides or known to routinely experience severe erosion and egg loss, or that are subject to artificial lighting. Nest relocations in association with construction activities shall cease when sand placement activities no longer threaten nests. Packet Page -179- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 12 of 20 c. Nests deposited within areas where construction activities have ceased or will not occur for 65 days or nests laid in the nourished berm prior to tilling shall be marked and left in place unless other factors threaten the success of the nest. The turtle permit holder shall install an on-beach marker at the nest site and/or a secondary marker at a point as far landward as possible to assure that future location of the nest will be possible should the on-beach marker be lost. No activity will occur within this area nor will any activities occur which could result in impacts to the nest. Nest sites shall be inspected daily to assure nest markers remain in place and the nest has not been disturbed by the project activity. 13. Marine Turtle or Nest Encounters. Upon locating a dead or injured sea turtle adult, hatchling or egg that may have been harmed or destroyed as a direct or indirect result of the project, the Corps, applicant, and/or local sponsor shall be responsible for notifying FWC Wildlife Alert at 1-888-404-FWCC (3922). Care shall be taken in handling injured sea turtles or eggs to ensure effective treatment or disposition, and in handling dead specimens to preserve biological materials in the best possible state for later analysis. In the event a sea turtle nest is excavated during construction activities, the permitted person responsible for egg relocation for the project shall be notified immediately so the eggs can be moved to a suitable relocation site. 14. Equipment Storage and Placement. Staging areas for construction equipment shall be located off the beach, if off-beach staging areas are available. Nighttime storage of construction equipment not in use shall be off the beach to minimize disturbance to shorebird and sea turtle nesting and hatching activities. In addition, all construction pipes that are placed on the beach shall be located as far landward as possible without compromising the integrity of the existing or reconstructed dune system. Pipes placed parallel to the dune shall be 5 to 10 feet away from the toe of the dune. Temporary storage of pipes shall be off the beach to the maximum extent possible. If it will be necessary to extend construction pipes past a known shorebird nesting site or over- wintering area for piping plovers,then whenever possible those pipes should be placed landward of the site before birds are active in that area. No pipe or sand shall be placed seaward of a shorebird nesting site during the shorebird nesting season. Packet Page -180- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 13 of 20 15. Project Lighting. Direct lighting of the beach and nearshore waters shall be limited to the immediate construction area during the sea turtle nesting season and shall comply with safety requirements. Lighting on offshore or onshore equipment shall be minimized through reduction, shielding, lowering, and appropriate placement to avoid excessive illumination of the water's surface and nesting beach while meeting all Coast Guard, EM 385-1-1, and OSHA requirements. Light intensity of lighting equipment shall be reduced to the minimum standard required by OSHA for General Construction areas, in order not to misdirect sea turtles. Shields shall be affixed to the light housing and be large enough to block light from all lamps from being transmitted outside the construction area (Figure below). OCEAN Shoreline Beach WORK AREA Beach No Illumination No Illumination Zone t i i Zone Shied■ng� "° /thfetdng 1;.ght source 1 CROP E SEC710i. BEACH LIGHTING � L SCHEMATIC Of.94 �fefA Wflt4xej::i° 16. 17. Fill Restrictions. During the sea turtle nesting season, the contractor shall not extend the beach fill more than 500 feet along the shoreline between dusk and the following day until the daily nesting survey has been completed and the beach cleared for fill advancement. An exception to this may occur if there is permitted sea turtle surveyor present on-site to ensure no nesting and hatching sea turtles are present within the extended work area. If the 500 feet is not feasible for the project, an agreed upon distance shall be established during the preconstruction meeting. Once the beach has been cleared and the necessary nest relocations have been completed, the contractor will be allowed to proceed with the placement of fill during daylight hours until dusk at which time the 500-foot length limitation shall apply. 18. Compaction Sampling. For Collier County, sand compaction shall be monitored in the area of sand placement immediately after completion of the project and prior to April 15th for three (3) subsequent years, and shall be monitored in accordance with a protocol agreed to by the U.S. Fish& Wildlife Service (FWS), FWC and the applicant or local Packet Page -181- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 14 of 20 sponsor. The requirement for compaction monitoring can be eliminated if the decision is made to till regardless of post-construction compaction levels. Out-year compaction monitoring and remediation are not required if placed material no longer remains on the beach. At a minimum, the protocol provided under a. and b. below shall be followed. If the average value for any depth exceeds 500 pounds per square inch(psi) for any two or more adjacent stations, then that area shall be tilled immediately prior to the following date listed above. If values exceeding 500 psi are distributed throughout the project area but in no case do those values exist at two adjacent stations at the same depth, then consultation with the FWC or FWS will be required to determine if tilling is required. If a few values exceeding 500 psi are present randomly within the project area,tilling will not be required. a. Compaction sampling stations shall be located at 500-foot intervals along the project area. One station shall be at the seaward edge of the dune/bulkhead line (when material is placed in this area), and one station shall be midway between the dune line and the high water line (normal wrack line). b. At each station, the cone penetrometer shall be pushed to a depth of 6, 12, and 18 inches three times (three replicates). Material may be removed from the hole if necessary to ensure accurate readings of successive levels of sediment. The penetrometer may need to be reset between pushes, especially if sediment layering exists. Layers of highly compact material may lie over less compact layers. Replicates shall be located as close to each other as possible,without interacting with the previous hole and/or disturbed sediments. The three replicate compaction values for each depth shall be averaged to produce final values for each depth at each station. Reports will include all 18 values for each transect line, and the final 6 averaged compaction values. 19. Tilling Requirements. If tilling is required as specified above, the area shall be tilled to a depth of 36 inches. All tilling activity shall be completed prior to the marine turtle nesting season. If tilling occurs during shorebird nesting season (February 15-August 31), shorebirds surveys prior to tilling may be required per the Shorebird Conditions included within this document. Each pass of the tilling equipment shall be overlapped to allow thorough and even tilling. If the project is completed during the marine turtle nesting season, tilling will not be performed in areas where nests have been left in place or relocated. If compaction measurements are taken, a report on the results of the compaction monitoring shall be submitted electronically to FWC at marineturtle(&m.yfwc.com prior to any tilling actions being taken. a. No tilling shall occur within 300 feet of any shorebird nest. Packet Page -182- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 15 of 20 b. If flightless shorebird young are observed within the work zone or equipment travel corridor, a Shorebird Monitor shall be present during the operation to ensure that equipment does not operate within 300 feet of the flightless young. c. A relatively even surface,with no deep ruts or furrows, shall be created during tilling. To do this, chain-linked fencing or other material shall be dragged over those areas as necessary after tilling. d. Tilling shall occur landward of the wrack line and avoid all vegetated areas 3 square feet or greater with a 3-square-foot buffer around the vegetated areas. The slope between the mean high water line and the mean low water line must be maintained in such a manner as to approximate natural slopes. 20. Escarpment Surveys. Visual surveys for escarpments along the project area shall be made immediately after completion of the sand placement project and during March 15 to April 15 for three(3) subsequent years if sand from the project area still remains on the beach. Escarpments that interfere with sea turtle nesting or that exceed 18 inches in height for a distance of at least 100 feet shall be leveled and the beach profile shall be reconfigured to minimize scarp formation by April 15. Any escarpment removal shall be reported by (num) location. If the project is completed during the sea turtle nesting and hatching season, escarpments may be required to be leveled immediately, while protecting nests that have been relocated or left in place. FWC shall be contacted immediately if subsequent reformation of escarpments that interfere with sea turtle nesting or that exceed 18 inches in height for a distance of 100 feet occurs during the nesting and hatching season to determine the appropriate action to be taken. If it is determined that escarpment leveling is required during the nesting or hatching season, the FWS or FWC will provide a brief written authorization that describes methods to be used to reduce the likelihood of impacting existing nests. An annual summary of escarpment surveys and actions taken shall be submitted electronically to marineturtle@myfwc.com along with the annual summary as described below. If escarpment removal occurs during shorebird nesting season(February 15-August 31), shorebirds surveys may be required per the Shorebird Conditions included within this document prior to removal. (NOTE: Out-year escarpment monitoring and remediation are not required if placed material no longer remains on the dry beach). Post-construction Monitoring and Reporting Marine Turtle Protection Conditions: 21. Reports on all marine turtle nesting activity shall be provided for the initial marine turtle nesting season (May 1 through September 15) and for up to three additional nesting seasons as follows: ^ 1 Packet Page -183- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No.0296087-001-JC Page 16 of 20 a. For the initial nesting season and the following year,the number and type of emergences (nests or false crawls) shall be reported per species in accordance with the Table below. An additional year of nesting surveys may be required if nesting success for any species on the nourished beach is less than 40%. b. For the initial nesting season, reproductive success shall be reported per species in accordance with the Table below. Reproductive success shall be reported for all loggerhead, green and leatherback nests if possible. Otherwise a statistically significant number of nests for each species shall be reported. c. In the event that the reproductive success documented by species meets or exceeds required criteria(e.g., 60% or greater for hatching success and emergence success with no statistical difference when compared to hatching success) for each species,monitoring for reproductive success shall be recommended,but not required for the second year post-construction. d. Monitoring of nesting activity in the seasons following construction shall include daily surveys and any additional measures authorized by the FWC. Summaries shall include all crawl activity, nesting success rates,hatching success of all relocated nests,hatching success of a representative sampling of nests left in place (if any)by species,project name and applicable project permit numbers and dates of construction. Data should be reported for the nourished areas in accordance with the Table below and should include number of nests lost to erosion or washed out. Summaries of nesting activity shall be submitted in electronic format(Excel spreadsheets) to the FWC Imperiled Species Management section at MTP(w,myfwc.com. All summaries shall be submitted by January 15 of the following year. The FWC Excel spreadsheet is available upon request from MTP�myfwc.com. 22. Two lighting surveys shall be conducted of all artificial lighting visible from the nourished berm. The first survey shall be conducted between May 1 and May 15 the first nesting season following construction or immediately after placement if construction is not completed until after May 15, and a second survey between July 15 and August 1. The survey shall be conducted by the Permittee or local sponsor and should be conducted to include a landward view from the seaward most extent of the new beach profile. The survey shall follow standard techniques for such a survey and include number and type of visible lights, location of lights and photo documentation. For each light source visible, it must be documented that the property owner(s) have been notified of the problem light with recommendations for correcting the light. Recommendations must be in accordance with the Florida Model Lighting Ordinance for Marine Turtle Protection(Chapter 62B- 55, F.A.C.) and local lighting restrictions. In addition to local code enforcement, actions must be taken by the Permittee to ensure that no lights or light sources are visible from the newly elevated beach within their respective areas. A report summarizing all lights Packet Page -184- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 17 of 20 visible shall be submitted to FWC Imperiled Species Management Section at marineturtle @myfwc.com by the 1st of the month following survey. A summary report documenting what corrective actions have been taken provided and all compliance and enforcement actions shall also be submitted by December 15 of that year. After the annual report is completed, a meeting shall be set up with the Permittee or local sponsor, county or municipality, FWC and the FWS to discuss the survey report as well as any documented sea turtle disorientations in or adjacent to the project area. Marine Turtle Monitoring Table for Beach Placement of Material Metric Duration Variable Criterion Nesting Success Year of construction,one year to Number of nests and non- 40%or greater two or three years nesting emergences by postconstruction if placed sand day by species remains on the beach and variable does not meet criterion based on the previous year monitoring Hatching Success Year of construction and one to Number of hatchlings by Average of 60%or three years postconstruction if species to completely greater(data must placed sand remains on the escape egg include washed out beach and variable does not nests) meet criterion based on the previous year monitoring , Emergence Success Year of construction and one to Number of hatchlings by Average must not be three years postconstruction if species to emerge from statistically different than placed sand remains on the nest onto beach naturally the average hatching beach and variable does not success meet success criterion based on the previous year monitoring Disorientation Year of construction and one to Number of nests and three years postconstruction if individuals that misorient placed sand remains on the or disorient beach Lighting Surveys Two surveys year following Number,location and 100%reduction in light construction,one survey photographs of lights sources directly visible between May 1 and May 15 and visible from elevated from nourished berm second survey between July 15 berm,corrective actions within one to two month And August 1 and notifications made s eriod Compaction Not required if the beach is tilled Shear resistance Less than 500 psi prior to nesting season each year placed sand remains on the beach Escarpment Surveys Weekly during nesting season Number of scarps 18 Successful remediation for up to three years each year inches or greater of all persistent scarps placed sand remains on the extending for more than within three weeks of beach 100 feet that persist for documentation more than two weeks • Packet Page -185- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 18 of 20 23. In the event that additional requirements are specified in any subsequent U.S. Fish and Wildlife Service Incidental Take Authorization and Biological Opinion, additional marine turtle protection conditions may be incorporated into this final order through a minor modification. 24. Turbidity curtains shall be used at the northeast bend in Clam Pass to protect the small shoal grass beds. MONITORING REQUIRED: 24. Water Quality-Turbidity shall be monitored as follows: Units: Nephelometric Turbidity Units (NTUs). Frequency: 2 times daily at least 4 hours apart during all dredging and sand placement operations,when the highest turbidity levels reach the edge of the mixing zone. Location: Background: At mid-depth clearly outside the influence of any artificially generated turbidity plume. Dredge Site: approximately 150 meters in the opposite direction of the prevailing current flow. Beach Site: approximately 500 meters upcurrent of the point where the return water from the dredged discharge reenters the Gulf of Mexico and the same distance offshore as the associated compliance sample. Compliance: At mid-depth,within the densest portion of any visible turbidity plume generated by this project. Dredge Site: Samples shall be collected 140 meters downcurrent from the dredge head into Clam Pass, in the densest portion of any visible turbidity plume. Additionally, Turbidity curtains shall be used at the northeast bend to protect seagrass beds within the circular loop. Beach Site: Samples shall be collected where the densest portion of the turbidity plume crosses the edge of the mixing zone, which measures 75 meters offshore and 150 meters downcurrent from the point where the return water from the dredged discharge reenters the Gulf of Mexico. Packet Page -186- 3/22/2016 11 .C. Joint Coastal Permit Clam Pass Maintenance Dredging Project Permit No. 0296087-001-JC Page 19 of 20 25. The compliance locations given above shall be considered the limits of the temporary mixing zone for turbidity allowed during construction. If monitoring reveals turbidity levels at the compliance sites that are greater than 29 NTUs above the corresponding background turbidity levels, construction activities shall cease immediately and not resume until corrective measures have been taken and turbidity has returned to acceptable levels. Any such occurrence shall also be immediately reported to the Department's Bureau of Beaches and Coastal Systems (BBCS)in Tallahassee via email at JCP Compliance(a7dep.state.fl.u.s and include in the subject line, "TURBIDITY EXCEEDANCE", and the Project Name and Permit Number. Also notify the Department's South District office. 26. Turbidity Reports. All turbidity monitoring data shall be submitted within one week of analysis, along with documents containing the following information: a. time of day samples were taken; b. dates of sampling and analysis; c. depth of water body; d. depth of each sample; e. antecedent weather conditions, including wind direction and velocity; f. tidal stage and direction of flow; g. water temperature; h. a map indicating the sampling locations, dredging and discharge locations, and direction of flow; i. a statement describing the methods used in collection,handling,storage and analysis of the samples; j. a statement by the individual responsible for implementation of the sampling program concerning the authenticity, precision, limits of detection, calibration of the meter and accuracy of the data; k. When samples cannot be collected, include an explanation in the report. If unable to collect samples due to severe weather conditions, include a copy of a current report from a reliable, independent source, such as an online weather service. Monitoring reports shall be submitted by email to the BBCS in Tallahassee (attn: JCP Compliance Officer) and to the Department's South District office. In the subject line of the reports, include the Project Name,Permit Number and the dates of the monitoring interval. Failure to submit reports in a timely manner constitutes grounds for revocation of the permit. When submitting this information to the Department, on the cover page of the report, and at the top of each page, please state: "This information is provided in partial fulfillment of the monitoring requirements in Permit No. 0296087-001-JC, for the Clam Pass Maintenance Dredging Project." Packet Page -187- 3/22/2016 11.C. ATTACHMENT C Packet Page-188- 3/22/2016 11 .C. AS-BUILT CERTIFICATION BY PROFESSIONAL ENGINEER Submit this form and one set of as-built engineering drawings to the U.S. Army Corps of Engineers, Enforcement Section, 1520 Royal Palm Square Boulevard Suite 310, Fort Myers, Florida,33919. If you have questions regarding this requirement, please contact the Enforcement Branch at 904-232-3131. 1. Department of the Army Permit Number: SAJ-1996-02789(SP-BEM) 2. Permittee Information: Name: Address: 3. Project Site Identification (physical location/address): 4. As-Built Certification: I hereby certify that the authorized work, including any mitigation required by Special Conditions to the permit, has been accomplished in accordance with the Department of the Army permit with any deviations noted below. This determination is based upon on-site observation, scheduled, and conducted by me or by a project representative under my direct supervision. i have enclosed one set of as-built engineering drawings. Signature of Engineer Name (Please type) (FL, PR, or VI) Reg. Number Company Name City State ZIP (Affix Seal) Date Telephone Number Packet Page -189- 3/22/2016 11.C. -3- Identify any deviations from the approved permit drawings and/or special conditions (attach additional pages if necessary): Packet Page -190- 3/22/2016 11.C. ATTACHMENT D Packet Page 491- 3/22/2016 11.C. ti P` rofi United States Department of the Interior VISH E VICE 414'i`�."��i� mod, N ' " 9 f FISH AND WILDLIFE SERVICE �� s' South Florida Ecological Services Office _�°� `°. ,,l %CH 304 1339 nth Street tea Vero Beach,Florida 32960 February 18, 2016 Colonel Jason A. Kirk U.S. Army Corps of Engineers Post Office Box 4970 Jacksonville, Florida 32232-0019 Service CPA Code: 41420-2010-CPA-0395 Service Consultation Code: 41420-2010-F-0249 Service Re-initiation Code: 41420-2010-F-0249-R001 Corps Application Number: SAJ-1996-02789 (SP-BEM) Date Received: March 19, 2015 Consultation Initiation Date: February 1, 2016 Project: Clam Pass dredging to maintain tidal exchange for estuary ecological improvements Applicant: Collier County, Pelican Bay Services Division County: Collier Dear Colonel Kirk: This document transmits the U.S. Fish and Wildlife Service's (Service)Biological Opinion to the U.S. Army Corps of Engineers (Corps) based on our review of the proposed Clam Pass dredging and sand placement project to maintain tidal exchange for estuary ecological improvements (Project). Collier County, Pelican Bay Services Division (Applicant) proposes to maintenance dredge Clam Pass and place the dredge material along approximately 0.85 mile(mi) of shoreline north and south of Clam Pass, Collier County, Florida(Figure 1). The Corps determined the proposed Project may affect, and is likely to adversely affect the threatened piping plover (Charadrius rrrelodus), the threatened red knot(Calidris cantina rufa), the threatened Northwest Atlantic Ocean (NWAO) Distinct Population Segment(DPS) of the loggerhead sea turtle (Ccrretta caretta), the endangered leatherback sea turtle (Dermochelys coriacea), the endangered green sea turtle (Chelonia nrydas), the endangered hawksbill sea turtle(Eretmochelys imbricata), and the endangered Kemp's ridley sea turtle(Lepiclochelys kempii); and may affect, but is not likely to adversely affect the endangered West Indian manatee(Trichechus rrranatus; manatee) and terrestrial loggerhead sea turtle designated critical habitat. For the purposes of this document,the five identified sea turtles will be referred to collectively as sea turtles. This document is provided in accordance with section 7 of the Endangered Species Act of 1973, as amended (Act) (87 Stat. 884; 16 U.S.C. 1531 et seq.). Packet Page -192- 3/22/2016 11 .C. Piping plover The Project may lead to temporarily diminished quantity and quality of intertidal foraging and roosting habitats within the Project area, resulting in decreased survivorship of migrating and wintering piping plovers and temporary adverse effects to suitable foraging and roosting habitat. The Applicant has agreed to follow and implement the minimization measures, Reasonable and Prudent Measures (RPMs), and Terms and Conditions outlined in the Programmatic Piping Plover Biological Opinion (P3B0; Service 2013). The Service has determined the Project effects along the 0.85 mi of beach and 0.32 mi within Clam Pass inlet and channel are consistent with those analyzed in the P3BO. Based on the Applicant's commitment to implement the minimization measures, RPMs, and the Terms and Conditions identified in the P3B0, the Project's take coverage for piping plovers is henceforth covered under the P3B0. All monitoring and reporting requirements must be submitted as outlined in the P3B0. Sea turtles The Project has the potential to adversely affect nesting female sea turtles, nests, and hatchlings within the action area. Potential effects include destruction of nests deposited within the boundaries of the Project, harassment in the form of disturbing or interfering with female sea turtles attempting to nest within the construction area or on adjacent beaches as a result of construction activities, and behavior modification of nesting females due to escarpment formation within the Project area during the nesting season resulting in false crawls or situations where they choose marginal or unsuitable nesting areas to deposit eggs. The quality of the dredge material could affect the ability of female sea turtles to nest, the suitability of the nest incubation environment, and the ability of hatchling to emerge from the nest. The Service has determined the Project effects along the 0.85 mi of beach are consistent with those analyzed in the revised Statewide Programmatic Biological Opinion (2015-SPBO;Service 2015). Based on the Applicant's commitment to implement the RPMs, and the Terms and Conditions identified in 2015-SPBO that apply to the Project, the Project's take coverage for listed sea turtles is henceforth covered under the 2015-SPBO. All monitoring and reporting requirements must be submitted as outlined in 2015-SPBO. Terrestrial loggerhead sea turtle critical habitat The Project encompasses terrestrial loggerhead sea turtle Critical Habitat Unit LOGG-T-FL-26— Wiggins Pass—Clam Pass,Collier County(north of Clam Pass), and Critical Habitat Unit LOGG-T- FL-27—Clam Pass—Doctors Pass, Collier County(south of Clam Pass). Unit LOGG-T-FL-26 consists of 4.8 mi of mainland shoreline along the Gulf of Mexico and extends from Wiggins Pass to Clam Pass. The 0.32 mi of Project shoreline north of Clam Pass includes 6.67 percent of Critical Habitat Unit LOGG-T-FL-26,and 0.05 percent of all designated critical habitat in the NWAO DPS. Unit LOGG-T-FL-27 consists of 3.0 mi of island shoreline along the Gulf of Mexico and extends from Clam Pass to Doctors Pass. The 0.53 mi of Project shoreline south of Clam Pass includes 17.67 percent of Critical Habitat Unit LOGG-T-FL-27, and 0.08 percent of all designated critical habitat in 7 Packet Page -193- 3/22/2016 11.C. the NWAO DPS. The Project will temporarily directly and/or indirectly impact biological and physical features of critical habitat for the NWAO DPS of the loggerhead sea turtle along 0.85 mi of beach along the Gulf of Mexico,Naples,Collier County,Florida. The effects of the Project on critical habitat are consistent with the analysis of the effects of beach nourishment projects on critical habitat conducted in the 2015-SPBO. Therefore, the Service concurs that the Project may affect,but is not likely to adversely affect terrestrial loggerhead sea turtle critical habitat. This Biological Opinion is based on information provided in the Corps' Public Notice and letter dated February 20,2015, and March 10,2015,respectively. The effects of the Project on piping plovers, sea turtles, and terrestrial loggerhead sea turtle critical habitat will not be discussed further based on the assessment above. A complete record of this consultation is on file at the South Florida Ecological Services Office, Vero Beach, Florida. Consultation History On March 19, 2015, the Service received a copy of the Corps' Public Notice and letter dated February 20,2015,and March 10,2015,respectively; requesting initiation of formal consultation on the proposed Project in Collier County,Florida. On January 26 and 28, 2016, the Service emailed the Corps requests for additional information. On January 28, 2016, the Service received partial responses from the Corps and consultant concerning our requests for additional information. On January 28 and February 1, 2016, the Service received responses from the consultant concerning our request for additional information. On February 2, 2016, the Service completed their review of the Project and initiated consultation with the Corps concerning the potential effects of the Project on piping plovers, red knots, sea turtles, designated terrestrial loggerhead sea turtle critical habitat, and manatees. BIOLOGICAL OPINION DESCRIPTION OF PROPOSED ACTION The Applicant proposes to dredge approximately 11,800 cubic yards (cy) (could be as much as 22,800 cy in subsequent dredging events) of beach compatible sand from Clam Pass inlet and channel, Collier County, Florida(Figure 1). The intent of the proposed Project is in part to protect, preserve, and maintain the Clam Bay Natural Resource Protection Area as outlined in the November 2014 Clam Bay Natural Resources Protection Area Management Plan. 3 Packet Page -194- 3/22/2016 11 .C. Using a combination of hydraulic and mechanical dredges, approximately 1,700 linear feet (ft) of Clam Pass inlet and channel will be dredged between Stations 0+00 and 17+00 (Figure 2). The proposed dredge template elevation is -5.0 ft North American Vertical Datum (NAVD) between Stations 0+00 and 3+64.5 (Figure 2). A 0.5-ft over-dredge allowance will be authorized. The profile of all dredge cuts within this section of work will consist of a 1 vertical ft: 1 horizontal ft slope. The proposed dredge template between Stations 3+64.5 and 17+00 will be similar except for an elevation of-4.0 NAVD. A maximum 50-ft wide (bottom width) entrance cut will be mechanically dredged, which will allow access for a shallow-draft,barge-mounted hydraulic dredge inside Clam Pass. Appropriate buffers (5 to 15 ft), as outlined in the Clam Bay Natural Resource Protection Area Management Plan, will be maintained between the dredge cuts and adjacent mangroves and/or seagrasses to minimize the potential for adverse impacts to adjacent resources. All excavated and dredged beach compatible material will be deposited within the fill template (Florida Department of Environmental Protection [DEP] reference monument R-39+733 ft to R-41, and R-42 ft to R-44+500 ft [total fill template is approximately 0.85 mi]), and graded using bulldozers or other appropriate grading equipment, to the permitted design fill profile(1 vertical ft : 10 horizontal ft slope with an elevation of+5.0 and+6.6 ft NAVD in the north and south fill template, respectively). Construction vehicles will either access the shoreline at one of two beach corridors located approximately 2.4 and 2 mi north and south of Clam Pass, respectively, or may be delivered directly to the site by barge. All sand placed within the fill template must be approved by the DEP and meet all requirements as outlined in the Florida Administrative Code subsection 62B-41.007. Although not anticipated, any non-beach compatible material will be stockpiled on the upland and ultimately disposed of landward of the Coastal Construction Control Line at the Collier County Landfill. All loose debris will be removed and properly disposed of prior to sand placement. Construction vehicles and equipment may traverse or be stored at the staging areas, stockpile area, and/or within the pipeline corridor. Existing vegetated habitat at these sites and corridors shall be protected to the maximum extent practicable. Any impacted vegetation at each of these sites and corridors shall be restored to preconstruction conditions. In addition, if heavy equipment and vehicles are required to traverse the dry beach above the mean high water line, the path will be tilled to 3 ft to avoid compaction impacts prior to the following sea turtle nesting season. The Project is expected to take between 45 and 75 days to complete and may take place 24 hours a day, 7 days a week. Project commencement is expected prior to March 15, 2016,. in order to complete dredging before the 2016 sea turtle nesting season. If not feasible, and Clam Pass remains open, the Project will commence in November 2016. Minimization measures As previously stated, the Applicant will follow and implement the minimization measures, RPMs, and the Terms and Conditions of the P3B0. These RPMs and the Terms and Conditions 4 Packet Page -195- 3/22/2016 11.C. will also minimize effects to red knots. To minimize impacts to manatees from the Project, the Applicant will implement the Florida Fish and Wildlife Conservation Commission's (FWC) Standard Manatee Conditions for In-Water Work ( FWC 2011) and the minimization measures outlined for manatees in the 2015- SPBO. Action Area The action area is defined as all areas to be affected directly or indirectly by the action and not merely the immediate area involved in the action. The Service identifies the action area to include the dredge template, sand fill template (0.85 mi), beach corridors, pipeline corridors, staging areas, and the upland disposal site. The Project is located along the Gulf of Mexico, in Collier County, Florida, at latitude 26.2197 and longitude-81.8169. SPECIES NOT LIKELY TO BE ADVERSELY AFFECTED BY THE PROPOSED ACTION West Indian manatee The Project occurs within the geographic range of the manatee. As previously indicated, the Applicant has agreed to follow and implement the Standard Manatee Conditions for In-Water Work(FWC 2011) and the minimization measures outlined in the 2015-SPBO to avoid potential impacts on manatees. Based on the proposed protection measures, the Service concurs with the Corps' determination that the Project may affect, but is not likely to adversely affect the species; therefore, the manatee will not be considered further in this Biological Opinion. STATUS OF THE SPECIES/CRITICAL HABITAT Please see httpJ/www.fws.gov/verobeach/StatusoftheSpecies.html for the current Status of the Species for the red knot(November 2015). Critical habitat has not been designated for the red knot; therefore, critical habitat will not be affected by the Project. Analysis of the species/critical habitat likely to be affected Red knot The proposed action has the potential to adversely affect migrating and wintering red knots and their habitat within the action area. The construction activities may lead to temporarily diminished quantity and quality of intertidal foraging and roosting habitats within the Project area, resulting in decreased survivorship of migrating and wintering red knots and temporary adverse effects to suitable intertidal foraging and roosting habitat. The length of construction activities may delay the recovery of prey species due to the prolonged disturbance of the benthic fauna. The detailed effects of the proposed action on red knots and their habitat will be 5 Packet Page -196- _.... 3/22/2016 11.C. considered further in the Effects of the Action sections of this Biological Opinion. ENVIRONMENTAL BASELINE Status of the species within the action area Assessing the number of red knots within the Project area during winter and migration periods is difficult because the number of birds utilizing the shoreline and intertidal areas vary from year to year and throughout each migration and wintering season. Piping plover monitoring has been conducted adjacent to Clam Pass since January 2013 in accordance to monitoring requirements associated with the Clam Pass dredging and sand placement event performed in 2013. Monitoring has been conducted twice monthly from January 1 through March 30, 2013, and from July 15th through March 15`h for the 2013/14 and 2014/15 seasons. The 2015/16 shorebird monitoring is ongoing. Red knots were observed on two occasions. In March 2013 and January 2014, two red knots were observed approximately 0.4 mile south of Clam Pass, and an undisclosed number of red knots observed foraging and resting on the shoreline immediately south of Clam Pass, respectively. No additional red knots have been documented within the Project area based on subsequent survey efforts. Our Geographic Information System database has 1 documented red knot located approximately 1.8 mi north of CIam Pass in 2006. According to red knot data provided by eBird, 2 red knots were document approximately 2 mile north of Clam Pass in November 2012 (eBird 2016). Factors affecting the species habitat within the action area Coastal development Shoreline development throughout the wintering range poses a threat to all populations of red knots. Beach maintenance and nourishment, inlet dredging, and artificial structures, such as jetties and groins,can eliminate wintering areas and alter sedimentation patterns leading to the loss of nearby habitat. Structural development along the shoreline or manipulation of natural inlets upsets the dynamic processes and results in habitat loss or degradation (Melvin et al. 1991). Increased coastal development brings other recreational disturbances that are known to prevent bird usage of an area, including human disturbance, predation or disturbance by domestic animals, beach raking and cleaning, and habitat degradation by off-road vehicles. Recreational management techniques, such as vehicle restrictions, pet restrictions, and symbolic fencing (usually sign posts and string) of roosting and foraging habitats, can help to address anthropogenic disturbances to wintering red knots. Educational materials, such as informational signs or brochures, can also provide valuable information to assist the public in understanding the need for conservation measures. Although these measures can be effective, they are not implemented consistently throughout the State. 6 Packet Page -197- 3/22/2016 11 .C. Accelerated sea-level rise Potential effects of sea-level rise on coastal beaches vary regionally due to subsidence or uplift as well as the geological character of the coast and nearshore. Low elevations and proximity to the coast make all nonbreeding coastal red knot foraging and roosting habitats vulnerable to the effects of rising sea-level including the Project area. Furthermore, areas with small astronomical tidal ranges (e.g., sand spits, shoals, and portions of the Gulf Coast where intertidal range is less than 3.3 ft) are the most vulnerable to loss of intertidal wetlands and flats induced by sea-level rise (Environmental Protection Agency 2009). Accelerated sea-level rise is a major component of climate change. A detailed discussion of additional effects of climate change across the range of the red knot can be found in the Status of the Species. Sand placement activities Sand placement projects, such as the proposed Project, have the potential to alter red knot habitat and have historically occurred in the action area. Beach nourishment can create a beach seaward of existing hard stabilization or heavy development, where the beach has been lost due to erosion and/or sea-level rise, restoring associated ecosystem functions. Although dredge and fill projects that place sand on beaches or dunes may restore lost or degraded habitat, these projects may degrade habitat by altering the natural sediment composition and depressing the invertebrate base. This hinders habitat migration with sea-level rise, and replaces the natural dune beach nearshore system with artificial geomorphology (Service 2012). Lott et al. (2009)found a strong negative correlation between sand placement projects and the presence of shorebirds on the Gulf Coast of Florida; however,he noted additional research was needed to clarify whether the cause was the sand placement project or the tendency for these projects to be located on highly developed shorelines. Harrington (2008) noted the need for a better understanding of the potential effects of inlet-related projects, such as jetties, on bird habitats. Conversely, in areas where the shoreline is highly eroded, sand placement activities can improve red knot foraging and roosting habitat. Sand placement activities add sand to the sediment budget, increasing the beach width and providing a sand source for emergent nearshore features to form. Although there is some research related to the management of beach nourishment projects to better maintain the habitat for shorebirds, much of this research is focused on beaches in the northern U.S. where breeding occurs (Melvin et al. 1991). In their wintering grounds, increasing beach width is an important aspect of beach nourishment projects in highly developed, eroding areas. The timing of the project is also important in preventing impacts to red knots as a result of sand placement activities. Sediment transport- drecle.ing The common practice of inlet and nearshore dredging can affect red knot habitat. Dredging often involves removal of sediment from sand bars, shoals, and inlets in the near-shore zone,directly impacting optimal red knot roosting and foraging habitats (Winn and Harrington in Guilfoyle et al. 2006; Harrington in Guilfoyle et al. 2007; HarTington 2008). These ephemeral habitats are even 7 Packet Page -198- 3/22/2016 11 .C. more valuable to red knots because they tend to receive less recreational use than the main beach strand. In addition to causing this direct habitat loss, the dredging of sand bars and shoals can preclude the creation and maintenance of red knot habitats by removing sand sources that would otherwise act as natural breakwaters and weld onto the shore over time(Morton 2003; Hayes and Michel 2008). Further,removing these sand features can cause or worsen localized erosion by altering depth contours and changing wave refraction (Hayes and Michel 2008),potentially degrading other nearby red knot habitats indirectly because inlet dynamics exert a strong influence on the adjacent shorelines. Studying barrier islands in Virginia and North Carolina,Fenster and Dolan (1996)found inlet influences extend 3.4 to 8.1 mi, and that inlets dominate shoreline changes for up to 2.7 mi. Changing the location of dominant channels at inlets can create profound alterations to the adjacent shoreline(Nordstrom 2000). EFFECTS OF THE ACTION Factors to be considered The Project will occur within habitat that is used by wintering/migrating(mid-July to late April) red knots. Since red knots can be present on these beaches for up to 10 months per year, construction is likely to occur while the species is utilizing these beaches and associated habitats. Project activities may affect red knots by flushing birds from roasting or foraging habitat hindering their ability to 1) recuperate from the energy expenditure of their migration, 2) survive on their wintering areas, and/or 3) to build fat reserves in preparation for migration back to their breeding grounds. In addition, effects of the Project may also include changes in the habitat including the physical characteristics of the beach from the placement of the sand. Analyses for effects of the action Direct effects Direct effects are those direct or immediate effects of a project on the species and/or its habitat. Heavy machinery and equipment(e.g., off road vehicles and bulldozers) operating within the Project area, placement of the dredge pipeline along the shoreline, and sand disposal, may affect migrating wintering red knots by disrupting their normal activities such as roosting and foraging by flushing them from the beach. Because red knots are highly mobile and can quickly move from harm's way, we do not anticipate that any individuals will be injured or killed by the proposed Project. Birds that are flushed may shift slightly up or down the beach to other available habitat adjacent to the action area, or they may travel greater distances to find an alternative stopover location. Although studies have shown that plovers tend to remain within a 2-mi wintering home range, it is unknown how far red knots will travel within specific areas during migration stopovers and within wintering areas due to local disturbance or to find a more abundant food source. Dredging of 0.32 mi within Clam Pass inlet and channel is expected to impact potentially suitable red knot habitat. The inlet and channel represents an ephemeral intertidal foraging and roosting area 8 Packet Page -199- 3/22/2016 11 .C. for red knots and the amount of available habitat varies throughout the year based on weather and ocean conditions. This habitat is currently dredged from the inlet and channel on an average 4 to 5 year interval for purposes of maintaining proper tidal exchange to the Clam Bay estuary system. Based on current conditions and practices, the removal of intertidal foraging and/or roosting habitat as a result of the proposed action would be variable based on the amount existing, but would likely represent an increase from status quo. Therefore, inlet and channel dredging would decrease the quantity of available intertidal foraging and roosting habitat in Clam Pass. Sand placement may also adversely affect red knots by decreasing the intertidal benthic prey species abundance along the 0.85 mi of beach. Sand placement temporarily reduces wrack prey species occurrence and can bury and suffocate prey species. Overtime the natural wrack would be restored through normal tidal events and benthic species recruitment and re-establishment following sand placement events is anticipated to be from 6 months up to 2 years. Indirect effects Indirect effects are those that are caused by or result from the proposed action, are later in time, and are reasonably certain to occur. The disturbance to normal red knot foraging and roosting behavior and decrease prey availability, during construction and immediately post-construction, may decrease the survival and fitness of individuals by limiting the ability of birds to rest and replenish their fat reserves for spring migration and summer breeding. Furthermore, the �-� increased energy expenditure and a potential lack of adequate food supplies could lead to reduced fecundity, and over-wintering survival. Such effects would be minimal for birds wintering or migrating through the action area because of the presence of suitable roosting and foraging habitat immediately north and south of the Project area. Furthermore, these effects are expected to be temporary, occurring during construction and up to 2 years following (for prey species to re-establish). Beneficial effects Beneficial effects are contemporaneous positive effects without any adverse effects to the species. The Project will introduce sediment into the system that will be reworked and redistributed through the natural processes of wind, wave action, and storm events. As previously stated, in areas where the shoreline is highly eroded, sand placement activities can improve red knot foraging and roosting habitat. The additional sediment will allow for formation of red knot habitat through natural processes, thus maintaining and/or enhancing the features for suitable red knot habitat. The renourishment and maintenance of such coastal habitats are important for maintaining healthy red knot populations. Species response to the proposed action Routine dredging and beach nourishment is expected on a 4-5 year interval. Timing of construction activities may vary in duration depending on the amount of work needed (routine 9 Packet Page -200- 3/22/2016 11 .C. nourishment, emergency nourishment, hot spot nourishment), weather conditions, and equipment mobilization and maintenance. The number of birds that may be present during dredging and beach nourishment activities is not known and is expected to vary annually based on the timing of migration and the timing of the activity. However, based on historic surveys we estimate that this number could be between zero and two or more individuals. Regardless of the number, the behavior of any birds present will be disrupted when they are flushed from the foraging and roosting habitat. Because the habitat immediately north and south of the Project area consists of sandy beaches (suitable habitat), we anticipate that most birds will travel only a short distance. A worst-case scenario would be that the adjacent habitat is unsuitable for a particular year and individuals are forced to travel greater distances, thereby reducing their overall fitness and potential to survive and reproduce. Dredging of the 0.32 mi within Clam Pass inlet and channel may result in a temporary loss of available habitat. Any birds that arrive in the area following a dredging event may find a reduction in habitat compared to previous years. We anticipate that in most cases birds will travel a short distance to suitable habitat immediately north and south of the Project, or possibly further east in Clam Pass channel. This could result in a reduced fitness due to energy expenditure moving up and down the beach and could ultimately lead to a reduction of the individual's ability to survive and reproduce. Sand placement is expected to temporarily decrease the quality of the existing foraging habitat. Foraging quality of the 0.85 mi of shoreline will be temporarily reduced for 6 months up to 2 years while the intertidal benthic fauna (prey base) recovers to normal population levels and natural wrack returns to the newly created island shoreline. If birds arrive during this period of recovery, they may have to seek alternative foraging/stopover locations because of the lower food availability. We anticipate that in most cases birds will travel a short distance to suitable habitat immediately north and south of the Project; however, in some cases, fitness of individuals could be lowered due to the lower food availability. Similar to the reduced fitness due to energy expenditure moving up and down the beach, this reduced prey availability could ultimately lead to a reduction of the individual's ability to survive and reproduce. Although the Project will have repeated temporary adverse effects on red knots on average every 4-5 years, the sand placement Project is ultimately anticipated to have an overall beneficial effect on the red knot by maintaining suitable habitat along 0.85 mi of beach. CUMULATIVE EFFECTS Cumulative effects include the effects of future State, tribal, local, or private actions that are reasonably certain to occur in the action area considered in this Biological Opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the Act. The Service is not aware of any specific activities that would be considered cumulative effects. 10 Packet Page -201- 3/22/2016 11.C. CONCLUSION The survival and recovery of all breeding populations of red knots are fundamentally dependent on the continued availability of sufficient habitat in their coastal migration and wintering ranges, where those species spend more than two-thirds of their annual cycle. All red knot populations are inherently vulnerable to even small declines in their most sensitive vital rates (i.e., survival of adults and fledged juveniles). After reviewing the current status of the red knot, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the Service's biological opinion that the Project, as proposed, is not likely to jeopardize the continued existence of the red knot. We have reached this conclusion because 1) the implementation of the Project is not likely to directly kill any red knots since they are highly mobile and can move out of harm's way; 2) the amount of increased energy expenditure searching for suitable habitat and searching for prey during construction is anticipated to be minimal because birds will only shift a short distance to the adjacent beach; 3) even if the disturbance and decreased food availability leads to a reduction of fitness that ultimately reduces survival and reproduction, the number of individuals effected would be relatively small (one to two individuals); and 4) the Project is anticipated to have a long-term beneficial effect by maintaining sand along the 0.85 mi of beach creating suitable red knot habitat for migration/stopovers. INCIDENTAL TAKE STATEMENT Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered or threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue,hunt, shoot, wound, kill,trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement. The measures described below are non-discretionary, and must be implemented by the Applicant so they become binding conditions of any grant or permit issued to the Applicant, as appropriate, for the exemption in section 7(o)(2) to apply. The Applicant has a continuing duty to regulate the activity covered by this incidental take statement. If the Applicant (I) fails to assume and implement the terms and conditions or (2) fails to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact 11 Packet Page -202- 3/22/2016 11 .C. of incidental take, the Applicant must report the progress of the action and its impacts on the species to the Service as specified in the incidental take statement [50 CFR §402.14(i)(3)]. AMOUNT OR EXTENT OF TAKE All red knots that occupy the beach and the Clam Pass inlet and channel during winter and migration, could be taken in the form of harm and harassment as a result of the proposed action. The actual number of red knots that may be affected is difficult to quantify because migration and wintering bird survey data indicate the number of birds within and adjacent to the Project area for the duration of project construction and intertidal benthic recovery vary both seasonally (spring and fall) and annually (year to year). Furthermore, of the birds that occupy the Project area, the subset that may be adversely affected by a reduction in fitness leading to a decrease in productivity or over-winter survivorship would be difficult to identify because these affects may only be measurable on the breeding grounds the subsequent breeding season. Therefore, the Service will use the amount of beach (0.85 mi) and 0.32 mi within Clam Pass inlet and channel as a surrogate for the number of red knots that may be taken by the proposed Project. If the Applicant expands the Project outside of the 0.85 mi of sandy beach or 0.32 mi within Clam Pass inlet and channel,the amount or extent of incidental take for red knots will be considered exceeded. This incidental take statement will expire in 2026, 10 years after issuance of the Corps permit. If, during the course of the action, this level of incidental take is exceeded, such incidental take represents new information requiring reinitiation of consultation and review of the RPMs provided. The Corps must immediately provide an explanation of the causes of the taking and review with the Service the need for possible modification of the RPMs. r1 EFFECT OF THE TAKE In the accompanying Biological Opinion, the Service determined this level of anticipated take is not likely to result in jeopardy to the red knot. REASONABLE AND PRUDENT MEASURES The Service and Corps have worked together to develop minimization measures for the proposed action to reduce the take and to minimize impacts of incidental take of red knots in this Biological Opinion. Consequently, there are no additional RPMs or terms and conditions. MONITORING AND REPORTING REQUIREMENTS Pursuant to 50 Code of Federal Regulations 402. 14(1)(3), the Corps and the Applicant must provide adequate monitoring and reporting to determine if the amount or extent of take is approached or exceeded. The Corps or Applicant must report the number of mi of beach renourished following each sand placement event and mi of Clam Pass inlet and channel dredged. The P'BO also contains additional reporting requirements that must be submitted to the Service by July 31 of each year in which monitoring is completed. 12 '^ Packet Page -203- 3/22/2016 11.C. DISPOSITION OF DEAD OR INJURED SPECIMEMS Upon locating a dead, injured, or sick threatened red knot specimen,initial notification shall be made to the Service's Office of Law Enforcement(Groveland,Florida; 352-429-1037). Additional notification shall be made to FWC at 1-888-404-3922 and the Service's South Florida Ecological Services Office (1339 20th Street, Vero Beach, Florida 32960-3559; 772-562-3909). Care should be taken in handling sick or injured specimens to ensure effective treatment and care and in handling dead specimens to preserve biological materials in the best possible state for later analysis of cause of death. In conjunction with the care of sick or injured endangered or threatened species or preservation of biological materials from a dead animal, the finder has the responsibility to ensure evidence intrinsic to the specimen is not unnecessarily disturbed. COORDINATION OF INCIDENTAL TAKE STATEMENT WITH OTHER LAWS, REGULATIONS, AND POLICIES Migratory Bird Treaty Act The Migratory Bird Treaty Act(MBTA) implements various treaties and conventions between the U.S., Canada,Japan, Mexico, and the former Soviet Union for the protection of migratory birds. Under the provisions of the MBTA, it is unlawful "by any means or manner to pursue, hunt, take, capture or kill any migratory bird except as permitted by regulations issued by the Service. The term "take" is not defined in the MBTA,but the Service has defined it by regulation to mean to pursue, hunt, shoot, wound, kill, trap, capture or collect any migratory bird, or any part, nest or egg or any migratory bird covered by the conventions or to attempt those activities. The Service carries out its mission to protect migratory birds by fostering relationships with entities that have taken effective steps to avoid take,by encouraging others to implement measures to avoid take, and through investigations and enforcement when appropriate. Companies are encouraged to work closely with the Service to identify available protective measures when developing project plans to safeguard wildlife and to implement those measures where applicable. Ultimately, those parties involved with the planning, design, construction, operation, maintenance, and decommissioning of projects are responsible for conducting relevant evaluations of the area and for determining which, if any, bird species may be affected. All sand placement events have the potential to impact nesting shorebirds protected under the MBTA (16 U.S.C. 701 et seq.). In order to minimize potential take of migratory birds protected under the MBTA the Applicant shall comply with the FWC standard shorebird protection guidelines to protect against impacts to nesting shorebirds during implementation of the Project. The Service will not refer the incidental take of red knots associated with this Project for prosecution under the MBTA, as amended (16 U.S.C. 703-712), if such take is in compliance with the terms and conditions specified here. 13 Packet Page -204- 3/22/2016 11.C. CONSERVATION RECOMMENDATIONS Section 7(a)(1) of the Act directs Federal agencies to utilize their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information. 1. The Corps should facilitate a meeting between the Service, FWC, and the Applicant to discuss steps for the long-term protection of wrack within the Project area. 2. The Applicant should avoid dredging submerged and emergent shoals to preserve beach dynamics and shorebird habitat. 3. The Applicant should support pre-and post-construction benthic invertebrate surveys. 4. The Applicant should consider the creation of habitat features such as ephemeral tide pools, irregular shorelines and extended flats to enhance feeding and roosting habitats. 5. The Corps should work with the Service,FWC, and the Applicant to reduce human disturbance to red knots (e.g., symbolic fencing around important roosting areas, enactment and enforcement of dog regulations, signage, outreach materials regarding red knots and beaches,bird stewards where high human use and red knots overlap). In order for the Service to be kept informed of actions minimizing or avoiding adverse effects or benefitting listed species or their habitats, the Service requests notification of the implementation of any conservation recommendations. REINITIATION NOTICE This concludes formal consultation on the action outlined in the request. As provided in 50 CFR §402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if: 1. The amount or extent of incidental take is exceeded; 2. New information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this Biological Opinion; 3. The agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this Biological Opinion; and 4. A new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation. 14 Packet Page -205- 3/22/2016 11 .C. Thank you for your cooperation in the effort to protect fish and wildlife resources. Should you have additional questions or require clarification, please contact Jeff Howe at 772-469-4283. Sincerely yours, •oxanna Hinzman Field Supervisor South Florida Ecological Services Office cc: electronic only Corps, Fort Myers, Florida (Brianne McGuffie) DEP,Tallahassee, Florida (Tom Jacobs) EPA,West Palm Beach, Florida (Ron Miedema) FWC, Tallahassee, Florida (FWC-CPS) Service,Jacksonville,Florida(Billy Brooks) Service, St. Petersburg., Florida(Ann Marie Lauritsen, Peter Plage) 15 Packet Page-206- 3/22/2016 11 .C. LITERATURE CITED eBird. 2016. An online database of bird distribution and abundance [Internet]. Cornell Lab of Ornithology; Ithaca, New York [cited January 28, 2016]. Available from: http://www.ebird.org. Environmental Protection Agency. 2009. Coastal zones and sea level rise. Available from: http://www.epa.gov/climatechange/effects/coastal/index/html. Fenster, M. and R. Dolan. 1996. Assessing the impact of tidal inlets on adjacent barrier island shorelines. Journal of Coastal Research 12(1):294-310. Florida Fish and Wildlife Conservation Commission (FWC). 2011. Standard Manatee Conditions for In-Water Work 2011. Available from: http://myfwc.com/wildlifehabitats/managed/manatee/permit-review/#Main Guilfoyle, M.P., R.A. Fischer, D.N. Pashley, and C.A. Lott, editors. 2006. Summary of first regional workshop on dredging,beach nourishment, and birds on the south Atlantic coast. ERDC/EL TR-06-10. U.S. Army Corps of Engineers;Washington,D.C. Available from: http://www.fws.gov/raleigh/pdfs/ES/tre106-I0.pdf. Guilfoyle, M.P., R.A. Fischer,D.N. Pashley, and C.A. Lott, editors. 2007. Summary of second regional workshop on dredging, beach nourishment, and birds on the north Atlantic coast. ERDC/EL TR-07-26. U.S. Army Corps of Engineers; Washington,D.C. Available from: http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA474358. Harrington, B.A. 2008. Coastal inlets as strategic habitat for shorebirds in the southeastern United States. DOER technical notes collection. U.S. Army Engineer Research and Development Center; Vicksburg, Mississippi. Available from: http://el.erdc.usace.army.mil/elpubs/pdf/doere25.pdf. Hayes, M.Q. and J. Michel. 2008. A coast for all seasons: A naturalist's guide to the coast of South Carolina. Pandion Books; Columbia, South Carolina. Lott, C.A., C.S. Ewell Jr., and K.L. Volanky. 2009. Habitat associations of shoreline-dependent birds in barrier island ecosystems during fall migration in Lee County, Florida. Prepared for U.S. Army Corps of Engineers; Engineer Research and Development Center; Technical Report. Melvin, S.M., C.R. Griffin, and L.H. MacIvor. 1991. Recovery strategies for piping plovers in managed coastal landscapes. Coastal Management 19: 21-34. 16 Packet Page -207- 3/22/2016 11.C. Morton, R.A. 2003. An overview of coastal land loss: With emphasis on the southeastern United States. USGS Open File Report 03-337. U.S. Geological Survey Center for Coastal and Watershed Studies; St. Petersburg, Florida. Available from: http://pubs.usgs.gov/of/2003/of03-337/pdf.html. Nordstrom, K.F. 2000. Beaches and dunes of developed coasts. Cambridge University Press; Cambridge, United Kingdom. U.S. Fish and Wildlife Service (Service). 2012. Comprehensive conservation strategy for the piping plover(Char•adrius melodus) in its coastal migration and wintering range in the continental United States. U.S. Fish and Wildlife Service;East Lansing, Minnesota. Available from: http J/www.fws.gov/midwestl endangered/pipingplover/pdf/CCSpiplNoApp2012.pdf. U.S. Fish and Wildlife Service (Service). 2013. Programmatic piping plover biological opinion to the U.S. Army Corps of Engineers (Service Consultation Code 04EF1000-2013-F- 0124) for shore protection activities in the geographical region of the north and south Florida Ecological Services Field Offices (May 22, 2013). Jacksonville and Vero Beach Field Offices, Florida. U.S. Fish and Wildlife Service (Service). 2015. Revised statewide programmatic biological opinion to the U.S. Army Corps of Engineers (FWS Log No. 41910-2011-F-0170)for shore protection activities along the coast of Florida (February 27, 2015). Jacksonville, Panama City, and Vero Beach Field Offices, Florida. 17 Packet Page -208- 3/22/2016 11 .C.•Y M { ;..s'r ,�rr"z $r01 yr a �' r x„' ",A` 3 i 4i-k o=-7*4 :45m. piai`4 ' ^°r s , " �"x a :14.11 " , .0. S*kxfr " '-P 7, . -01 8 ' �' � ki � 44 i oz x t g 4 � a 4y5• $ "i F n " f : W Otta V ' t, Kyc Ig zI o t ':4 . 'x r '.4.t,'4,:z'. t,-tct'63 o a t $ m -max L .� w °T a Yc ca,, ra sg' rr � � � � ..., ,wig e` ` . .10 car�r U,' \ � ��x 1 r5-541:3%; l � ? a s I #sw �O r �' '�1, fir "?' 1 As VAT' 411 ,; F O 9 1I - -'-`' a 3 S Io Rt N Z� u�F,�r,.3 1' � wi�%say° � t,d ,^ F, v,t z q as `° ,+S° '#"3'`5, `? s °r00 s ;,1,-r t 1': 1�' s 3 T'bsr43 `. , fc n\ -�,', 4+.gR a. o. x 4v'iv. 'ss'�' ,°$"«"sx''a'r-...�F� m; ,w' -.rt T.. ..,.+ � aRY.R m0. . i9 lx^41y � L 7 fT�r >. Z.. ' �srk,"^. 5 �;' a Y x $°E ,. "'.,x"1,4.4£S ' 1, y--��f ,,A '�o,Pr 'a''�w. v0� 'F FO / f �' ry�. ''i = G > t F�; ,� .� ,j., Figure 1. Location of the dredging template and sand fill template, Clam Pass, Collier County, Florida. 18 '� Packet Page -209- 3/22/2016 11.0. .� r .e tit«l #..f.: .4: j /�✓ l t �; £ _ y 7G y�414 .a' w 11;-•:7;,sue ✓ ., �'�c ,f fl ; X99' -, `js^ c _ ? ' --L-r, � Via- -.� t` - I -ç�4 Sr i h I `` 1 _ ��....,..k.,.„f.;1_,,,:.2,„- IIUb4I5 C()Y CIA PASS I9ONiTaRINO SCOPE �Sa t 1r 4 g�t Ip L',YtOC)Ith It1LET STATIONS 96 F1 3<10DRI fir rt L\G{tiE I'It`FOR. PELICAN BAY SERVICES DIVISION - �” FA%:(?39}594-2-7 s =g ',,;,t;,-,,,,u„• JOB: 13075 .t www humIl nn r,aom Figure 2. Proposed dredging template and elevations • Clam Pass, Collier County, Florida. 19 Packet Page -210- 3/22/2016 11 .C. ATTACHMENT E Packet Page -211- 3/22/2016 11.C. STANDARD MANATEE CONDITIONS FOR IN-WATER WORK �O 2011 The permittee shall comply with the following conditions intended to protect manatees from direct project effects: a. All personnel associated with the project shall be instructed about the presence of manatees and manatee speed zones, and the need to avoid collisions with and injury to manatees. The permittee shall advise all construction personnel that there are civil and criminal penalties for harming, harassing, or killing manatees which are protected under the Marine Mammal Protection Act, the Endangered Species Act, and the Florida Manatee Sanctuary Act. b. All vessels associated with the construction project shall operate at "Idle Speed/No Wake" at all times while in the immediate area and while in water where the draft of the vessel provides less than a four-foot clearance from the bottom. All vessels will follow routes of deep water whenever possible. c. Siltation or turbidity barriers shall be made of material in which manatees cannot become entangled, shall be properly secured, and shall be regularly monitored to avoid manatee entanglement or entrapment. Barriers must not impede manatee movement. d. All on-site project personnel are responsible for observing water-related activities for the presence of manatee(s). All in-water operations, including vessels, must be shutdown if a manatee(s) comes within 50 feet of the operation. Activities will not resume until the manatee(s) has moved beyond the 50-foot radius of the project operation, or until 30 minutes elapses if the manatee(s) has not reappeared within 50 feet of the operation. Animals must not be herded away or harassed into leaving. e. Any collision with or injury to a manatee shall be reported immediately to the Florida Fish and Wildlife Conservation Commission (FWC) Hotline at 1-888-404-3922. Collision and/or injury should also be reported to the U.S. Fish and Wildlife Service in Jacksonville (1-904-731-3336)for north Florida or Vero Beach (1-772-562-3909)for south Florida, and to FWC at ImperiledSpecies(7a myFWC.com f. Temporary signs concerning manatees shall be posted prior to and during all in-water project activities. All signs are to be removed by the permittee upon completion of the project. Temporary signs that have already been approved for this use by the FWC must be used. One sign which reads Caution: Boaters must be posted. A second sign measuring at least 8 1/2" by 11" explaining the requirements for"Idle Speed/No Wake" and the shut down of in-water operations must be posted in a location prominently visible to all personnel engaged in water-related activities. These signs can be viewed at MyFWC.com/manatee. Questions concerning these signs can be sent to the email address listed above. Packet Page -212- 3/22/2016 11.C. imam W SIMIRMER 0 itZ C En CC Cti ' < 4,1. E s-•, CD ° Z (0 (N LIJ "'I 0 4- c >, L LLI eta Z LO 0 C 4-' 0 — (D Co) * < > ******.44 ,,,,c .›.... 0 Z 0 CI ee ■ < Imtiffil ILI — o. . _ et uj 2 .... a) 0 In etitil imi, . . cg cz. c = Z th co E --6 (0) o ti. 00 0 , 1221746 ail ta), D 12 0 ,:t s,-, < am. a.) ,....'- - `,1.::".' Packet Page -213- 3/22/2016 11.C. ATTACHMENT F Packet Page -214- 3/22/2016 11.C. sENr sr co ` -#co,. UNITED STATES DEPARTMENT OF COMMERCE Xf 4^ * . National Oceanic and Atmospheric Administration NATIONAL MARINE FISHERIES SERVICE �,,,-. Southeast Regional Office *rams 263 13th Avenue South St. Petersburg,FL 33701 SEA TURTLE AND SMALLTOOTH SAWFISH CONSTRUCTION CONDITIONS The permittee shall comply with the following protected species construction conditions: a. The permittee shall instruct all personnel associated with the project of the potential presence of these species and the need to avoid collisions with sea turtles and smalltooth sawfish. All construction personnel are responsible for observing water-related activities for the presence of these species. b. The permittee shall advise all construction personnel that there are civil and criminal penalties for harming,harassing,or killing sea turtles or smalltooth sawfish,which are protected under the Endangered Species Act of 1973. c. Siltation barriers shall be made of material in which a sea turtle or smalltooth sawfish cannot become entangled,be properly secured,and be regularly monitored to avoid protected species entrapment. Barriers may not block sea turtle or smalltooth sawfish entry to or exit from designated critical habitat without prior agreement from the National Marine Fisheries Service's Protected Resources Division, St.Petersburg,Florida. d. All vessels associated with the construction project shall operate at"no wake/idle" speeds at all times while in the construction area and while in water depths where the draft of the vessel provides less than a four-foot clearance from the bottom. All vessels will preferentially follow deep-water routes(e.g.,marked channels)whenever possible. e. If a sea turtle or smalltooth sawfish is seen within 100 yards of the active daily construction/dredging operation or vessel movement,all appropriate precautions shall be implemented to ensure its protection. These precautions shall include cessation of operation of any moving equipment closer than 50 feet of a sea turtle or smalltooth sawfish. Operation of any mechanical construction equipment shall cease immediately if a sea turtle or smalltooth sawfish is seen within a 50-ft radius of the equipment. Activities may not resume until the protected species has departed the project area of its own volition. f. Any collision with and/or injury to a sea turtle or smalltooth sawfish shall be reported immediately to the National Marine Fisheries Service's Protected Resources Division(727-824- 5312)and the local authorized sea turtle stranding/rescue organization. g. Any special construction conditions,required of your specific project,outside these general conditions,if applicable,will be addressed in the primary consultation. Revised: March 23,2006 O:\fortis\Sea Turtle and Smalltooth Sawfish Construction Conditions.doc ,0[inn N ,,ice i 4y t Packet Page -215- 4 n 3/22/2016 11.C. �, dad � -*•,;'ALP ''''.47:,;irit •'-044....'4'..i i 4'.'73." irl'''''-f 4774.7.;4 0. " � .su,�,' 4.'. .„`f ` tt Y't 1,',.'"-;',.. �t� , _ lr s y Jg c+ ��..� * Ai ,v'4 ,,... .,,,,... ...„.. .........,„,_,,,,.. ..: ° r t , � x"` pt C,, X c afi v j mG Y b c"_ a !?T � j ..1{IY P- - ti `7'er'f 1} `1` r`4 fi 4, L - .;Si,4f ''# "»b. '-;ft, ",,. s isy4r �. , % X•'" '`' _''1"0,•!*R 1,--t "'''•'•,.".:, ,t: '? 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