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HomeMy WebLinkAboutCC Resolution 10775 (616 Canal Street)RESOLUTION NO. 10775 A RESOLUTION AUTHORIZING THE CITY MANAGER TO SIGN AN AGREEMENT BETWEEN CITY OF SAN RAFAEL AND A. A. CARRICO, OWNER OF 616 CANAL STREET, FOR A MARINE SEWAGE PUMP -OUT AND DISCHARGE FACILITY ON THE SAN RAFAEL CANAL AT 616 CANAL STREET. (Six year Agreement — may be extended an additional period with approval of City Manager.) WHEREAS, the City Council has authorized the Public Works Director to sign a grant agreement with the State of California in the amount of $4,000 to fund the installation of a sewage pump -out facility at 616 Canal Street; and WHEREAS, the grant agreement only partially funds the full cost of the facility with the remainder funded under State grant to Mr. A.A. Carrico; and WHEREAS, said grant to City imposes operational duties on the City that are more appropriately borne by Mr. Carrico; and WHEREAS, it is necessary for the City to enter into a separate agreement with Mr. Carrico delegating those operational duties; NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Rafael hereby authorizes the City Manager to sign an agreement with Mr. A.A. Carrico for a marine sewage pump -out facility located at 616 Canal Street. I, Jeanne M. Leoneini, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Tuesday, the 20th day of February, 2001, by the following vote, to wit: AYES: COUNCILMEMBERS: Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Cohen JEANNE M. LEONCINI, City Clerk 0R10�WAL AGREEMENT BETWEEN CITY OF SAN RAFAEL AND A. A. CARRICO, OWNER OF 616 CANAL STREET, FOR A MARINE SEWAGE PUMP -OUT AND DISCHARGE FACILITY ON THE SAN RAFAEL CANAL AT 616 CANAL STREET This Agreement is made and entered into this 20th day of February, 2001, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and A. A. CARRICO, owner of the property located at 616 Canal Street, San Rafael (hereinafter "CONTRACTOR"). RECITALS WHEREAS, CITY desires to establish, by means of contract, a marine sewage pump- out/discharge facility on the San Rafael Canal, to meet the needs of the boating public and to permit public access to said facilities; and, WHEREAS, CONTRACTOR is the owner of canal -fronting property located at 616 Canal Street, San Rafael, and has applied for and received a grant from the State of California, under certain terms and conditions, to finance 75% of the construction of a marine sewage pump- out/discharge facility on his property; and, WHEREAS, CITY has applied for and received a grant of $4,000.00 from the State of California, under certain terms and conditions, for the construction of a marine sewage pump- out/discharge facility, and whereas, consistent with State guidelines and regulations, CITY desires to remit said grant funds to CONTRACTOR to complete the remaining 25% of the construction of the marine sewage pump-out/discharge facility and, at the same time, CITY desires to transfer to CONTRACTOR all the duties and obligations of CITY under the terms and conditions of the grant; and, WHEREAS, CONTRACTOR is willing to accept said $4,000.00 grant funds from CITY on the terms and conditions specified in the State grant funding agreement as well as the additional terms and conditions specified in this Agreement; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. DEFINITIONS. A. "Facility" means the marine sewage pump -out and discharge station, and all related equipment and facilities, located on the San Rafael Canal on property owned by CONTRACTOR at 616 Canal Street. B. "Grant" means that $4,000.00 State of California grant to the City of San Rafael for the purposes and under the terms and conditions detailed in Exhibit "1"; attached hereto and incorporated. 1 Copy 2. PROJECT COORDINATION. A. CITY. The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Director of Public Works is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. A. A. Carrico is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 3. DUTIES OF CONTRACTOR. In return for the consideration of CITY remitting GRANT to CONTRACTOR, CONTRACTOR shall perform the duties and/or provide services as described below: A. Complete by October 1, 2002 construction of FACILITY; B. Make FACILITY available for use by the public seven days a week, 52 weeks a year. C. Make use of facility free of charge for six (6) years from the date of the contract agreement between the City of San Rafael and the State of California, after which date use of the FACILITY shall be for a reasonable rate not to exceed $5.00 per use. D. Install signage as required by GRANT; E. Comply, and require contractor to comply with all local building, zoning and other regulations in construction of FACILITY; F. Accept the CITY's delegation of, and perform all of CITY's requirements and obligations under GRANT, attached hereto and incorporated herein as Exhibit" 1". G. Monitor the use and operation of FACILITY at all times to ensure compliance with all safety, environmental and all other federal state and local laws and regulations. H. Keep FACILITY maintained and in good working order in compliance with all federal, state and local laws and regulations. I. Prepare and implement an emergency plan or CONTRACTOR's response to and remediation of any accidental and/or unlawful discharges into the San Rafael Canal by anyone using or operating FACILITY. A copy of said plan shall be provided to the Project Manager. J. In the event of any discharge of waste, sewage, effluent or similar substance by anyone using, operating or maintaining FACILITY, CONTRACTOR shall report such discharges to all appropriate federal, state and local agencies. K. In the event of any such discharge, CONTRACTOR shall have the sole duty and responsibility to clean up and/or remediate said discharge, no matter how caused, in accordance with all federal, state and local laws and regulations and in accordance with the directives of appropriate governmental agencies. z 4. DUTIES OF CITY. CITY shall pay the GRANT to CONTRACTOR so that CONTRACTOR can complete construction of FACILITY. CITY shall have no other duties or responsibilities to CONTRACTOR under this Agreement. 5. COMPENSATION. As consideration for the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR the $4,000.00 State grant received for the purpose of constructing said facility. 6. TERM OF AGREEMENT. The term of this Agreement shall be for six (6) year(s) commencing on the date of this agreement. Upon mutual agreement of the parties, and subject to the approval of the City Manager, the term of this Agreement shall be extended for an additional period. 7. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 8. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. A. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury, or property damage; 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence; 3. If any licensed professional performs any of the services required to be 3 performed under this Agreement, a professional liability insurance policy in the minimum amount of one million ($1,000,000) dollars to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. B. The insurance coverage required of the CONTRACTOR by section 9. A., shall also meet the following requirements: 1. The insurance shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or coverage for any contribution; 2. Except for professional liability insurance, the insurance policies shall be endorsed for contractual liability and personal injury; 3. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 4. CONTRACTOR shall provide to City's Risk Manager, (a) Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific endorsements naming CITY, its officers, agents, employees, and volunteers, as additional named insureds under the policies. 5. The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon thirty (30) days written notice to City's Risk Manager. 6. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years; 7. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement; 8. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. C. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. D. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the City's Risk Manager and the City Attorney. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 4 10. INDEMNIFICATION. CONTRACTOR shall hold harmless, release, indemnify and defend (with counsel reasonably satisfactory to CITY) the CITY, its officers, agents, employees and volunteers, their successors and assigns (the "Indemnitees", herein) from and against all liability, cost and expense for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party) when arising or resulting from the construction, use, maintenance and operation of the FACILITY by CONTRACTOR, its agents, employees, contractors, subcontractors or invitees, or by any third party. The duty of CONTRACTOR to indemnify and save harmless the Indemnitees herein, includes the duties to defend as set forth in §2778 of the Civil Code. It is the express intent of the parties under this section, that CONTRACTOR will indemnify and hold harmless the Indemnitees from any and all claims, suits or actions arising from any cause whatsoever as set forth above, other than the willful misconduct or criminal acts of the Indemnitees. CONTRACTOR waives any and all rights to any type of express or implied indemnity against the CITY's use of FACILITY except for indemnification of the CITY for liability and loss arising out of the willful misconduct or criminal acts of the Indemnitees. This indemnity shall survive termination of this Agreement. It is the intention of the parties that should any term of this indemnity provision be found to be void or unenforceable, the remainder of the provision shall remain in full force and effect. Any person, firm or corporation CONTRACTOR authorizes to work upon the FACILITY, including any subcontractor, shall be deemed to be CONTRACTOR's agent and shall be subject to all the applicable terms of this Agreement. Specifically, the foregoing notwithstanding, CONTRACTOR shall hold harmless, release, indemnify and defend (with counsel reasonably satisfactory to CITY) the Indemnitees from and against all liability, cost and expense for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party) when arising or resulting from the malfunction of FACILITY or from the accidental or intentional discharge of waste, effluent, sewage or other such substances into the San Rafael Canal by anyone using, operating or maintaining, or attempting to use, operate or maintain FACILITY. 11. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 12. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, 5 ordinances, codes or regulations. 13. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 14. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: TO CONTRACTOR: Rod Gould, City Manager City of San Rafael 1400 Fifth Ave. (P.O. Box 151560) San Rafael, CA 94915-1560 A. A. Carrico Stow -A -Way San Rafael Marin Center 616 Canal Street San Rafael, CA 94901 15. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 16. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 17. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 18. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 19. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain, a CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CONTRACTOR's taxpayer identification number is 567-24-0756, and CONTRACTOR certifies under penalty of perjury that said taxpayer identification number is correct. 20. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL RODIULD, City Manager ATTEST: a�AM. LEONCIN City Clerk GARY T. I nom- &-, �Wollr City Attorney CONTRACTOR By: Name: Title:74 (Revised 6/99) s ST.VM OF CALIFORNIA STANDARD AGREEMENT F STANDARD AGREEMENT EXHIBIT "1" STD 213 (NEW 02/98) AGREEMENT NUMBER 1. This Agreement is entered into between the State Agency and the Contractor named below STATE A CY'S NAME DEPARTMENT OF BOATING AND WATERWAYS (DEPARTMENT) CONTRACTOR'S NAME CITY OF SAN RAFAEL (GRANTEE) 2. The term of this Agreement is: November 20, 2000 to NOVEMBER 20, 2006 (6 years) 3. The maximum amount $4.000.00 of this Agreement is: FOUR THOUSAND DOLLARS 4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement: Exhibit A — Vessel Pumpout Facility 3 Pages Installation Contract Reimbursement Exhibit B — Vessel Pumpout Facility Installation 5 Pages Contract Standard Terms and Conditions IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto. CONTRACTOR CONTRACTOR'S NAME (/J other than an individual, state whether a corporation, partnership, etc.) CITY O�W RAFAEL BY (At t ori- d Signal re r I DATE AED(Dq+� t type) PRINTED NAME AND TITLE OF'PERSON SIGNING DAVID M. BERNARDI, Public Works Director ADDRESS P.O. BOX 151560 SAN RAFAEL, CA 94915-1560 STATE OF CALIFORNIA AGENCY NAME DEPARTMENT OF BOATING AND WATERWAYS BY (Authonzed Signature)I DATE SIGNED (Do not type) on PRINTED NAME AND TITLE OF PERSON SIGNING CARLTON D. MOORE, Interim Director ADDRESS 2000 EVERGREEN STREET, SUITE 100 SACRAMENTO, CALIF. 95815-3888 CALIFORNIA Department of General Services Use Only Exempt per EXHIBIT A VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT REIMBURSEMENT CITY OF SAN RAFAEL 1. GRANT (a) The DEPARTMENT will make a grant up to the amount of FOUR THOUSAND DOLLARS ($ 4,000.00), to the GRANTEE, for installation a vessel pumpout at the San Rafael Marine Center in accordance with EXHIBIT B. The grant shall not exceed this amount. (b) The grant costs shall be reimbursed with State Funds. 2. PROJECT COMPLETION DATE. The GRANTEE shall complete the installation of the vessel pumpout facility (such installation as described in the Clean Vessel Act Grant Application dated October 4, 2000, and hereinafter referred to as PROJECT) no later than October 4, 2001. 3. TERM OF CONTRACT (a) The term of this CONTRACT, subject to the provisions for prior termination, shall begin on the effective date of the CONTRACT and shall continue for six (6) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE. 4. USERS FEES The GRANTEE may not charge a fee for the use of the facilities constructed with the GRANT. 5. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and be open and available to the public for the full period of this CONTRACT. 2. Operation of the pumpout facilities shall be available 24 hours per day and shall not be hindered by locked enclosures, padlocks, pass keys, electronic keys, token systems or other means. 1 EXHIBIT A 3. The pumpout facilities constructed under this grant shall be equipped with an hour meter to record its usage. (b) The grant recipient shall construct and install signage that shall: 1. Indicate the presence of a vessel pumpout facility (State supplied sign); 2. Acknowledge that the facility was constructed or improved with funds from the Clean Vessel Act. The suggested language shall be "This facility was funded under the Clean Vessel Act by your purchase of fishing equipment and motorboat fuels" (State supplied sign). 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, operation instructions, and a contact name and number if the facility is inoperable. (c) Upon expiration of the CONTRACT, all improvements made by the GRANT shall become property of the GRANTEE. (d) GRANTEE shall each year provide information about the use and reliability of the vessel pumpout facility in the form of a post -implementation evaluation report (PIER) provided by the Department and shall transmit the results of the PIER to the DEPARTMENT no more than 30 days after receipt of the PIER. (e) Notices required between the parties shall be deemed to have been given when mailed to the respective addresses herein, first-class postage fully prepaid thereon. 2 VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ARTICLE I — DEFINITIONS EXHIBIT B A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS means those permitting, planning, management, signage, labor, design, material and construction costs which are necessarily incurred by the GRANTEE for the purpose of completing the PROJECT and are covered by the GRANT; however, such PROJECT COSTS shall not include any expenses incurred prior to the effective date of this CONTRACT. C. GRANT means a grant provided pursuant to Harbors and Navigation Code Section 72.75 and the Federal Clean Vessel Act of 1992 to finance all or part of the PROJECT COSTS. D. OPEN AND AVAILABLE TO THE PUBLIC means that all users (public and private) shall have full and reasonable access to the pumpouddump station for the purpose of sewage disposal. Fees shall be equal for all pumpout users at a facility open and available to the public. However, members and customers may prepay for pumpouts within a fee structure, so that a separate fee for pumpouts at the time of use would not be needed for those members and customers. ARTICLE II CONSTRUCTION OF PROJECT A. All contracts for construction of the PROJECT shall: 1. Be awarded in accordance with all applicable laws and regulations, including but not limited to competitive bidding. 2. Contain the following clause: "Representatives of the Department of Boating and Waterways shall be allowed access to all parts of the construction work." 3. Contain a clause that there shall be no discrimination against any employee who is employed in the work covered by such contracts or against any applicant for such employment because of sex, race, color, ancestry, religious creed, national origin, physical disability (including HIV and AIDS), mental disability, medical condition (cancer), age, martial status, and denial of family care leave, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, I EXHIBIT B recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. GRANTEE and subcontractors shall insure that the evaluations and treatment of their employees and applicants for employment are free from such discrimination and harassment. GRANTEE and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (GC Section 12990 (a -f) et seq.) and the applicable regulations promulgated thereunder (CCR Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing GC Section 12990 (a -f), set forth in Chapter 5, Div. 4 of Title 2 of the CCR, are incorporated into this CONTRACT by reference and made a part hereof as if set forth in full. GRANTEE and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other Agreement. 4. Contain a clause that the contractor shall comply with all air pollution and environmental control rules, regulations, ordinances and statutes which apply to the PROJECT and any work performed pursuant to the contract. B. Inspection reports and related inspection data shall at all reasonable times be accessible to the DEPARTMENT personnel, and request copies of such reports and data shall be provided to the DEPARTMENT by the GRANTEE. ARTICLE III - DISBURSEMENT OF GRANT A. GRANTEE shall acquire advance written acceptance of the completed project from the DEPARMENT prior to any disbursement of funds. 13. The GRANTEE shall request final payment in writing under this CONTRACT no later than SIXTY (60) days following the date of acceptance of the PROJECT by the GRANTEE. C. The DEPARTMENT may withhold any payment of GRANT funds for failure by the GRANTEE to comply with any of the conditions and provisions of this CONTRACT. 2 EXHIBIT B ARTICLE IV- LIABILITY A. The GRANTEE waives all claims and recourse against the DEPARTMENT including the right to contribution for any loss or damage arising from, growing out or in any way connected with or incident to this CONTRACT. B. The GRANTEE shall indemnify, hold harmless, and defend the DEPARTMENT, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability arising out of the acquisition, design, construction, operation, maintenance, existence or failure of the PROJECT. C. If the DEPARTMENT is named as a co-defendant pursuant to Government Code Sections 895, et seq, the GRANTEE shall notify the DEPARTMENT and represent it unless the DEPARTMENT elects to represent itself. If the DEPARTMENT undertakes its own defense, it shall bear its own litigation costs, expenses and attorney's fees. ARTICLE V - WAIVER OF RIGHTS It is the intention of the parties hereto that from time to time either party may waive certain of its rights under this CONTRACT. Any waiver at this time by either party hereto of its rights with respect to a default or any other matter arising in connection with CONTRACT, shall not be deemed to be a waiver with respect to any other default or matter. ARTICLE VI - REMEDIES NOT EXCLUSIVE The use be either the DEPARTMENT or the GRANTEE of any remedy specified in the CONTRACT for the enforcement of the CONTRACT is not exclusive and shall not deprive the party using such remedy of, or limit the application of, any other remedy provided by law. ARTICLE VII - OPINIONS AND DETERMINATIONS Where the terms of this CONTRACT provide for action to be based upon the opinion, judgment, approval, review, or determination of either the DEPARTMENT or GRANTEE, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE VIII - ASSIGNMENT No assignment or transfer of this CONTRACT or any part hereof, rights hereunder, or interest herein by GRANTEE shall be valid unless and until it is approved in writing by the DEPARTMENT and made subject to such reasonable terms and conditions as the DEPARTMENT may impose. ARTICLE IX - SUCCESSORS AND ASSIGNS OBLIGATED 3 EXHIBIT B This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X — APPROVAL The CONTRACT is of no force or effect until signed by both parties and approved by the Department of General Service, if required. GRANTEE may not commence performance until such approval has been obtained. ARTICLE XI - AUDIT All contracts entered into by the GRANTEE involving an expenditure of GRANT funds shall contain a provision which indicates that the contracting parties shall agree that the DEPARTMENT, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records for possible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. GRANTEE agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonable have information related to such records. Further, contracting parties agree to include a similar right of the State to audit records and interview staff in any subcontract related to performance of this CONTRACT. (GC 8546.7, PCC 10115 et seq., CCR Tittle 2, Section 1896). ARTICLE XII — RECYCLING CERTIFICATION The GRANTEE shall certify in writing under penalty of perjury, the minimum, not exact, percentage of recycled content, both post consumer waste and secondary waste as defined in the PCC Section 12161 and 12200, in materials, goods, or supplies offered or products used in the performance of this CONTRACT, regardless of whether the product meets the required recycled product percentage as defined in the PCC Section 12161 and 12200. GRANTEE may certify that the product contains zero recycled content. (PCC 10233, 10308.5, 10354) ARTICLE XIII — CERTIFICATION CLAUSES The GRANTEE shall abide by the CONTRA TOR CERTIFICATION CLAUSES contained in the document CCC 199 are hereby incorporated by reference and made a part of this CONTRACT by this reference as if attached hereto. ARTICLE XIV — ANTITRUST CLAIMS A. The Government Code Chapter on Antitrust claims contains the following definitions: 1). 'Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2). "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. 21 EXHIBIT B B. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. Government Code Section 4552. C. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assigned under this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paid by the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. D. Upon demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. ARTICLE XV - CHILD SUPPORT COMPLIANCE ACT "For any contract in excess of $100,000, the contractor acknowledges in accordance with, that: A. The contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5 of Division 9 of the Family Code. B. The contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the names of all new employees to the New Hire Registry maintained by the California Employment Development Department." ARTICLE XVI - UNENFORCEABLE PROVISION In the event that any provision of this CONTRACT is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this CONTRACT have force and effect and shall not be effected thereby. 5 'CC800 http-.//ww �is.dgs.ca.gov/STD_PROCESS/Documents/cccgOO.htit CCC800 CERTIFICATION I, the official named below, CERTIFY UNDER PENALTY OF PERJURY that I am duly authorized to legally bind the prospective Contractor to the clause(s) listed below. This certification is made under the laws of the State of California. Contractor/Bidder Firm Name (Printed) Federal ID Number CITY OF SAN RAFAEL 94-6000424 By (Autho zed ignature) Printed Name and Title of Person Signing DAVID M. BERNARDI, Public Works Director Date Executed 2/27/01 I Executed in the County of MARI N CONTRACTOR CERTIFICATION CLAUSES 1. STATEMENT OF COMPLIANCE.: Contractor has, unless exempted, complied with the nondiscrimination program requirements. (GC 12990 (a -f) and CCR, Title 2, Section 8103) (Not applicable to public entities.) 2. DRUG-FREE WORKPLACE REOUIREMENTS,: Contractor will comply with the requirements of the Drug -Free Workplace Act of 1990 and will provide a drug-free workplace by taking the following actions: a. Publish a statement notifying employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited and specifying actions to be taken against employees for violations. b. Establish a Drug -Free Awareness Program to inform employees about: 1) the dangers of drug abuse in the workplace; 2) the person's or organization's policy of maintaining a drug-free workplace; 3) any available counseling, rehabilitation and employee assistance programs; and, 4) penalties that may be imposed upon employees for drug abuse violations. c. Every employee who works on the proposed Agreement will: 1) receive a copy of the company's drug-free workplace policy statement; and, 2) agree to abide by the terms of the company's statement as a condition of employment on theAgreement. Failure to comply with these requirements may result in suspension of payments under the Agreement or termination of the Agreement or both and Contractor may be ineligible for award of any future State agreements if the department determines that any of the following has occurred: (1) the Contractor has 'CC 80 0 nf: http://wP Is.dgs.ca.gov/STD_PROCESS/Documents/ccc800.htn made false certification, or violated the certification by failing to carry out the requirements as noted above. (GC 8350 et seq.) 3. NATIONAL LABOR RELATIONS BOARD CERTIFICATION: Contractor certifies that no more than one (1) final unappealable finding of contempt of court by a Federal court has been issued against Contractor within the immediately preceding two-year period because of Contractor's failure to comply with an order of a Federal court which orders Contractor to comply with an order of the National Labor Relations Board. (PCC 10296) (Not applicable to public entities.) DOING BUSINESS WITH THE STATE OF CALIFORNIA The following laws apply to persons or entities doing business with the State of California. 1. CONFLICT OF INTEREST: Contractor needs to be aware of the following provisions regarding current or former state employees. If Contractor has any questions on the status of any person rendering services or involved with the Agreement, the awarding agency must be contacted immediately for clarification. Current State Employees (PCC 10410): 1). No officer or employee shall engage in any employment, activity or enterprise from which the officer or employee receives compensation or has a financial interest and which is sponsored or funded by any state agency, unless the employment, activity or enterprise is required as a condition of regular state employment. 2). No officer or employee shall contract on his or her own behalf as an independent contractor with any state agency to provide goods or services. Former State Employees (PCC 10411): 1). For the two-year period from the date he or she left state employment, no former state officer or employee may enter into a contract in which he or she engaged in any of the negotiations, transactions, planning, arrangements or any part of the decision-making process relevant to the contract while employed in any capacity by any state agency. 2). For the twelve-month period from the date he or she left state employment, no former state officer or employee may enter into a contract with any state agency if he or she was employed by that state agency in a policy-making position in the same general subject area as the proposed contract within the 12 -month period prior to his or her leaving state service. If Contractor violates any provisions of above paragraphs, such action by Contractor shall render this Agreement void. (PCC 10420) Members of boards and commissions are exempt from this section if they do not receive payment other than payment of each meeting of the board or commission, payment for preparatory time and payment for per diem. (PCC 10430 (e)) 2. LABOR CODE/WORKERS' COMPENSATION: Contractor needs to be aware of the provisions which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions, and Contractor affirms to comply with such provisions before commencing the performance of the work of this Agreement. (Labor Code Section 3700) 3. AMERICANS WITH DISABILITIES ACT: Contractor assures the State that it complies with the =CC800 of Z hnp://w. -iIs.dgs.ca.gov/STD__PROCESS/Documents/ccc800.htn Americans with Disabilities Act (ADA) of 1990, which prohibits discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. (42 U.S.C. 12101 et seq.) 4. CONTRACTOR NAME CHANGE: An amendment is required to change the Contractor's name as listed on this Agreement. Upon receipt of legal documentation of the name change the State will process the amendment. Payment of invoices presented with a new name cannot be paid prior to approval of said amendment. 5. CORPORATE OUALIFICATIONS TO DO BUSINESS IN CALIFORNIA,: a. When agreements are to be performed in the state by corporations, the contracting agencies will be verifying that the contractor is currently qualified to do business in California in order to ensure that all obligations due to the state are fulfilled. b. "Doing business" is defined in R&TC Section 23101 as actively engaging in any transaction for the purpose of financial or pecuniary gain or profit. Although there are some statutory exceptions to taxation, rarely will a corporate contractor performing within the state not be subject to the franchise tax. c. Both domestic and foreign corporations (those incorporated outside of California) must be in good standing in order to be qualified to do business in California. Agencies will determine whether a corporation is in good standing by calling the Office of the Secretary of State. 6. RESOLUTION: A county, city, district, or other local public body must provide the State with a copy of a resolution, order, motion, or ordinance of the local governing body which by law has authority to enter into an agreement, authorizing execution of the agreement. 7. AIR OR WATER POLLUTION VIOLATION,: Under the State laws, the Contractor shall not be: (1) in violation of any order or resolution not subject to review promulgated by the State Air Resources Board or an air pollution control district; (2) subject to cease and desist order not subject to review issued pursuant to Section 13301 of the Water Code for violation of waste discharge requirements or discharge prohibitions; or (3) finally determined to be in violation of provisions of federal law relating to air or water pollution. 8. PAYEE DATA RECORD FORM STD. 204:. This form must be completed by all contractors that are not another state agency or other government entity.