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.
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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
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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.
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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,
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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.
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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.
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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,
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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.
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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
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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.
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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.
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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
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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
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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.