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HomeMy WebLinkAboutC-3335 - Vessel Pumpout Facility Installation-'32) 2 VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT (DBW REIMBURSEMENT) NEWPORT BEACH — FERNANDO AVENUE This contract is entered into on March 25, 2000 between the California Department of Boating and Waterways (DEPARTMENT) and the City of Newport Beach (GRANTEE). The DEPARTMENT and the GRANTEE agree as follows: 1. CONTRACT This contract incorporates EXHIBIT A, Standard Terms and Conditions. 2. GRANT The DEPARTMENT will make a grant for TWENTY FIVE PERCENT (25 %) of the PROJECT COSTS for installation of a complete vessel pumpout facility at the Fernando Avenue Pier to the GRANTEE in accordance with EXHIBIT A; the grant shall not exceed the amount of EIGHT THOUSAND DOLLARS ($8,000). 3. 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 June 29, 1999 and hereinafter referred to as PROJECT) no later than June 30, 2001. 4. TERM OF CONTRACT (a) The term of this CONTRACT, subject to any provision for prior termination, shall begin on the effective date of the CONTRACT and shall continue for FIVE (5) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE. 5. USE FEES I 0 5. USE FEES The GRANTEE may charge a fee for the use of the facilities constructed with the GRANT; however, such fees may only be used to defray operation and maintenance costs incurred from the operation of the vessel pumpout facility. The GRANTEE may charge a total fee of $5.00 for the use of the pumpout facilities constructed; the $5.00 fee may be increased or decreased annually in accordance with percentage changes in the United States Bureau of Labor Statistics Consumer Price Index (CPI) using the CPI index for December 1993 (436.8) as the base for any such adjustment. 6. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and continue to 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 system or other means. 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). FJ 0 • 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, hours of operation, 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 below, first -class postage fully prepaid thereon: To DEPARTMENT: Department of Boating and Waterways 2000 Evergreen Street, Suite 100 Sacramento, California 95815 -3888 To GRANTEE: City of Newport Beach Attention: City Manager P. O. Box 1768 Newport Beach, California 92658 3 I r 0 0 DBW VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT CITY OF NEWPORT BEACH a FMA 44�!? l6 Zoo a Date Signed 4 STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY By interim Itiector t--�eo� Date Signed MAY 2220 DEPARTMENT OF BOATING AND WATERWAYS 7 CONTRACT # 99- 107 -346 Contractor: City of Newport Beach BUDGET APPROPRIATION: CH 50/99 ITEM 3680- 101 -0516 AMOUNT $8.000.00 1 Line Item Allotment: GRANTS -Clean Vessel - Newport Beach, Fernando St. FUND: Harbors & Watercraft Revolving Fund FY 99/00 I certify upon my own personal knowledge that budgeted funds are available for the period and purpose of the expenditure stated above. Date: 05/04/00 ccounting Officer FFY VENDOR DATE DOCUMENT INDEX 99/00 581 -00 05/04/00 99- 107 -346 3680 OBJAJ PCA AMOUNT PROJECT WP 61011 $8,000.00 309060 99 0 OIl VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ultw"W MR] 910 0 W91261 A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS mean 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 the Harbors and Navigation Code Section 72.75 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 pumpout/dump 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: 0 0 Be awarded in accordance with all applicable laws and regulations, including but not limited to competitive bidding. 2. Contain the following clause: "Representatives of Department of Boating and Waterways shall be allowed access to all parts of the construction work." 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, religion, color, age, national origin, or physical handicap, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 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 on request copies of such reports and data shall be provided 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 DEPARTMENT prior to any disbursement of funds. 0 B. 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. 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 except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents, and employees. 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 Section 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 RIGH'T'S It is the intention of the parties hereto that from time to time either parry may waive certain 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 by 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 DETERMINATION 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 This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X - INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this CONTRACT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this CONTRACT. 8 ARTICLE XI - SUBJECT TO 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 be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this CONTRACT. VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT (FEDERAL REIMBURSEMENT) NEWPORT BEACH — FERNANDO AVENUE This contract is entered into on March 25, 2000 between the California Department of Boating and Waterways (DEPARTMENT) and the City of Newport Beach (GRANTEE). The DEPARTMENT and the GRANTEE agree as follows: 1. CONTRACT This contract incorporates EXHIBIT A, Standard Terms and Conditions. 2. GRANT The DEPARTMENT will make a grant for SEVENTY FIVE PERCENT (75 %n) of the PROJECT COSTS for installation of a complete vessel pumpout facility at the Fernando Avenue Pier to the GRANTEE in accordance with EXHIBIT A; the grant shall not exceed the amount of TWENTY EIGHT THOUSAND DOLLARS ($28,000). 3. 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 June 29,1999 and hereinafter referred to as PROJECT) no later than June 30, 2001. 4. TERM OF CONTRACT (a) The term of this CONTRACT, subject to any provision for prior termination, shall begin on the effective date of the CONTRACT and shall continue for FIVE (5) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE. 5. USE FEES 1 Ll 5. USE FEES 0 The GRANTEE may charge a fee for the use of the facilities constructed with the GRANT; however, such fees may only be used to defray operation and maintenance costs incurred from the operation of the vessel pumpout facility. The GRANTEE may charge a total fee of $5.00 for the use of the pumpout facilities constructed; the $5.00 fee may be increased or decreased annually in accordance with percentage changes in the United States Bureau of Labor Statistics Consumer Price Index (CPI) using the CPI index for December 1993 (436.8) as the base for any such adjustment. 6. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and continue to 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 system or other means. 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). 2 C, 0 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, hours of operation, 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 below, first -class postage fully prepaid thereon: To DEPARTMENT: Department of Boating and Waterways 2000 Evergreen Street, Suite 100 Sacramento, California 95815 -3888 To GRANTEE: City of Newport Beach P. O. Box 1768 Newport Beach, California 92658 9 DBW VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT CITY OF NEWPORT BEACH By Ti e: Date Signe STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY By el"� .r., Interim Director � ao Date §igned F-71.. = i MAY 22 J i F�GENn,, Jo� i DEPARTMENT OF BOATING AND WATERWAYS CONTRACT # 99- 107 -728 Contractor: City of Newport Beach BUDGET APPROPRIATION: CH 50/99 ITEM 3680- 101 -0890 AMOUNT $28,000.00 Line Item Allotment: CLEAN VESSEL - Newport Beach - Fernando St. and Bay Ave. FUND: Federal Trust Fund FY 99/00 I certify upon my own personal knowledge that budgeted funds are available for the period and purpose of the expenditure stated above. Date: 05/04/00 Senior Accounting Officer FFY VENDOR DATE DOCUMENT INDEX 99/00 581 -00 05/04/00 99- 107 -728 3680 OBJAJ PCA AMOUNT PROJECT WP 61072 $28,000.00 308060 99 0 0 EXHIBIT A VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ARTICLE I - DEFINITIONS A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS mean 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 the Harbors and Navigation Code Section 72.75 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 pumpout/dump 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 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, religion, color, age, national origin, or physical handicap, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 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 on request copies of such reports and data shall be provided 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 DEPARTMENT prior to any disbursement of funds. • 9 B. 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. 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 except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents, and employees. 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 Section 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 rights under this CONTRACT. Any waiver at this time by either parry 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. • w ARTICLE VI - REMEDIES NOT EXCLUSIVE The use by 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 DETERMINATION 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 This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X - INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this CONTRACT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this CONTRACT. 8 0 ARTICLE XI - SUBJECT TO 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 be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this CONTRACT. L 0 VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ARTICLE I- EXHIBIT A A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS mean 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 the Harbors and Navigation Code Section 72.75 to fmance 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 pumpout/dump 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: 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." 5 0 0 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, religion, color, age, national origin, or physical handicap, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 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 on request copies of such reports and data shall be provided 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 DEPARTMENT prior to any disbursement of funds. B. 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. ARTICLE N - 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 except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents and employees. 2 0 0 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 by 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 terns 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. 0 0 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 This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X - INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this CONTRACT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this CONTRACT. ARTICLE XI - SUBJECT TO 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 be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this CONTRACT. 0 VESSEL PLJWOUT FACILITY INSTALLATION CONTRACT (FEDERAL REIMBURSEMENT) NEWPORT BEACH — FERNANDO AVENUE This contract is entered into on September 2, 1999, between the California Department of Boating and Waterways (DEPARTMENT) and the City of Newport Beach. (GRANTEE). The DEPARTMENT and the GRANTEE agree as follows: L CONTRACT This contract incorporates EXHIBIT A, Standard Terms and Conditions. 2. GRANT The DEPARTMENT will make a grant for SEVENTY FIVE PERCENT (75 %) of the PROJECT COSTS for installation of a vessel pumpout facility at the Fernando Avenue Pier to the GRANTEE in accordance with EXHIBIT A; the grant shall not exceed the amount of TWENTY EIGHT THOUSAND DOLLARS ($28,000). 3. 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 June 7, 1999 and hereinafter referred to as PROJECT) no later than June 30, 2000. 4. TERM OF CONTRACT (a) The term of this CONTRACT, subject to any provision for prior termination, shall begin on the effective date of the CONTRACT and shall continue for FIVE (5) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE. 5. USE FEES The GRANTEE may charge a fee .for the use of the facilities constructed with the GRANT; however, such fees may only be used to defray operation and maintenance costs incurred from the operation of the vessel pumpout facility. The GRANTEE may charge a total fee of $5.00 for the use of the pumpout facilities constructed; the $5.00 fee may be increased or decreased annually in accordance with percentage changes in the United States Bureau of Labor Statistics Consumer Price Index (CPI) using the CPI index for December 1993 (436.8) as the base for any such adjustment. 6. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and continue to 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. 3. The pumpout facilities constructed under this grant shall be equipped with a 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). 2 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, hours of operation, 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 below, first -class postage fully prepaid thereon: To DEPARTMENT: Department of Boating and Waterways 2000 Evergreen Street, Suite 100 .. Sacramento; California 95815 -3888 To GRANTEE: City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 0 DBW VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT CITY OF NEWPORT BEACH STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS By_ Title: Date Signed By Director Date Signed 0 9 VESSEL WASTE PUMPOUT FACILITY INSTALLATION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH, A MUNICIPAL CORPORATION AND This Agreement "Agreement" is made and entered into this day of 1999, by and between (hereinafter "Harbor Permittee" and the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California, (hereinafter "City "). This Agreement is entered into with regards to the following Recitals. RECITALS A. City has adopted Newport Beach Municipal Code Section 17.30.020 which requires all sailing clubs, commercial harbor activity permittees and harbor permittees to install a vessel waste pumpout system on dock space under the control of the permittee with convenient access to all vessels. Many of the Vessel Waste pumpout facilities required under Section 17.30.020 are old, inefficient and in need of replacement. B. The State Department of Boating and Waterways is serving as the Grant Coordinator for the 1992 Federal Clean Vessel Act "Act." The Act was passed to help reduce pollution from vessel sewage discharge in U.S. waters. The Act authorized a Grant Program to fund construction, renovation, operation and maintenance of vessel waste pumpout facilities. Under the terms of the Grant Program one hundred percent (100 %) funding is provided for purchase and installation of vessel waste pumpout facilities for public agencies and seventy -five percent (75 %) funding is provided for private businesses that own and operate boating facilities open to the general public. 1011 0 0 C. Harbor Permittee is a business operating in Newport Harbor subject to the provisions of Newport Beach Municipal Code Section 17.30.020 with facilities open to the general public. D. City has applied to the State Department of Boating and Waterways to receive funding under the Grant Program to provide one hundred percent (100 %) funding to Harbor Permittee for purchase and installation of a new vessel waste pumpout facilities for Harbor Permittee. NOW THEREFORE and in consideration of City's agreement to apply under the Grant Program and reimburse Harbor Permittee as provided in this Agreement, City and Harbor Permittee agree as follows: 1. City will reimburse Harbor Permittee the amount of $ ($_.__) which amount represents the cost to purchase and install a vessel waste pumpout facility described as ( "pumpout facility"). 2. The design and installation of the pumpout facility is the responsibility of Harbor Permittee. Prior to start of construction for installation of the pumpout facility, Harbor Permittee shall submit plans and specifications, and contract documents to the for review and approval in writing. Harbor Permittee must secure all necessary permits to install and operate the Pumpout Facility. Harbor Permittee is responsible for compliance with all permit requirements, State and local codes and the inspection of the Project to insure compliance of material products and workmanship with the approved plans and specifications. Any changes to PJ 0 the approved grant plans and specifications must be approved by the City of Newport Beach Marine Division prior to construction to be eligible for reimbursement. 3. Harbor Permittee agrees that the pumpout facility will be installed and operational no later than Upon inspection and approval of City Marine Division, City will reimburse Harbor Permittee as provided in Paragraph — 4. The term of this Agreement, subject to any provision for prior termination shall begin on the effective date of this Agreement and shall continue for seven (7) years from such date. 5. Access and use of the pumpout facility shall be free to all recreational vessels. All vessels shall have reasonable access to the vessel pumpout facility. No fees may be charged for the pumpout facility anytime during the term of this Agreement. 6. The pumpout facility shall be used for the collection of boat sewage only. No bilge or oily waste shall be collected in the pumpout facility. 7. Harbor Permittee will post two (2) signs within feet (_') of the vessel waste pumpout facility visible from the adjoining waterway and the pier as follows: i. A standardized logo vessel waste Pumpout/dump station sign which credits the U.S. Fish & Wildlife Service and the Department. City will provide the signs for Harbor Permittee's use. Harbor Permittee shall maintain the signs in good repair and condition and shall be required to pay cost of replacement as necessary for signs which are lost, stolen or damaged. 3 0 ii. An information sign that indicates that use of the facility is free, restrictions, hours of operation, operating instructions and a contact name and telephone number to call if the facility is inoperable. 8. The vessel waste pumpout facility shall contain an hour meter to monitor usage of the facilities. Harbor Permittee shall maintain all the facilities, including the hour meter, signs and structural supports for the facilities in good operating repair and condition, for the entire term of this Agreement. 9. Harbor Permittee agrees to hold harmless, defend and indemnify City and State of California including their agents, officers, representatives and its employees from any and all damages that might result from the construction of the Project and use of the pumpout facility. Damages include but are not limited to damages resulting from negligence of Harbor Permittee, administrative or criminal penalties imposed by Federal, State or local agencies for unlawful discharges from the pumpout facility or violation of any law or regulations imposed by any Federal, State or local agency. 10. No construction of additional slips, pier or on shore facility is authorized by this Agreement. 11. Where the terms of this Agreement provide for action to be based upon the opinion, judgment, approval, review, or determination of either the City of Harbor Permittee, 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. 12. No assignment or transfer of this Agreement or any part hereof, rights hereunder, or interest herein by Harbor Permittee shall be valid unless and until it is V 0 0 approved in writing by the City and made subject to such reasonable terms and conditions as the City may impose. 13. This Agreement and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. 14. During regular office hours, City or its duly authorized representatives shall have the right to inspect and make copies of any books, records or reports of Harbor Permittee pertaining to this Agreement. Both parties shall maintain and make available for such inspection accurate records and prior to reimbursement, Harbor Permittee shall provide the City copies of their records of all of its costs, disbursements, and receipts with respect to activities, purchase and installation under this Agreement. 15. All Agreements entered into by the Harbor Permittee involving an expenditure of grant funds shall contain a provision which indicates that the agreeing parties shall be subject to the examination and audit of the California Auditor General for a period of three (3) years after final payment under this Agreement. F: cat \da \shared W g \Vessel Pu m p \090399. doc 5 STATE OF CALIFORNIA —THE RESOURCES AGEN10 0 GRAY DAVIS, Governor DEPARTMENT OF BOATING AND WATERWAYS 2000 EVERGREEN STREET, SUITE 100 SACRAMENTO, CALIFORNIA 95815 -3888 (916) 263 -1331 June 5, 2000 Mr. Wes Armand City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 -8915 Dear Mr. Armand: Enclosed for your records is your copy of the approved Pumpout Facility Installation Contracts #99- 107 -346 and 99- 107 -728. This letter constitutes authority to commence work in accordance with the terms and conditions of these contracts. Please contact me to schedule a project inspection when the installation has been completed. Any questions pertaining to the contract work should be addressed to my attention or you may call me at 916- 263 -8149. Any correspondence relating to reimbursement due under this contract must make reference to the above contract numbers. The reimbursement request must include copies of all substantiating invoices submitted in triplicate. Enclosures Sincerely, Kevin Atkinson Project Manager (916) 263 -8149 March 28, 2000 ( MAR 2 8 ; Council Agenda Item No. 3 I AA �1 �lu�ion.�2g7p -Zga To: Mayor and Members of the City Council From: Timothy Riley, Fire and Marine Department f Subject: Adopt Resolution Requesting a Grant from Boating and Waterways to Rebuild an Existing Pumpout Facility Within the City of Newport Beach RECOMMENDATION If desired, adopt Resolution # to approve the attached Vessel Pumpout Facility Installation Contracts to receive grants from State Boating and Waterways totaling $36,000. BACKGROUND In 1992, Congress passed a Clean Vessel Act to help reduce pollution from vessel sewage discharge in the U. S. waters. The Grant Program established by the act will help fund the construction, renovation, operation and maintenance of pumpout and dump stations to service public craft. As part of this commitment to provide clean, safe and enjoyable recreational boating in California, the Department of Boating and Waterways is serving as the State Grant coordinator. The Grant will reimburse agencies up to 100 percent of the installed cost of pumpout and /or dump stations. This includes the renovation of existing equipment. There is a need for a pumpout station in the vicinity of Fernando Street and Bay Avenue. The cost to install a pumpout station would be $36,000. The City has made a grant application to State Boating and Waterways and has been approved for the above Grant. The Grant will pay us 100% of the cost to install or $36,000. To complete the Grant process, it is necessary for the City Council to approve and adopt the above Resolution and to authorize staff to sign the two Installation Contracts that are necessary to facilitate the 100% reimbursement and accept the Grant for purposes stated. The attached contracts have been reviewed by the City Attorney and approved as to form. 0 RESOLUTION NO. 2000- 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REQUESTING A GRANT IN THE AMOUNT OF $36,000 FROM THE DEPARTMENT OF BOATING AND WATERWAYS FOR THE INSTALLATION OF A NEW PUMPOUT STATION AT FERNANDO STREET AND BAY AVENUE. WHEREAS, the City of Newport Beach desires to install a boat pumpout /dump station facility at the Public Pier at Fernando Street and Bay Avenue to meet the needs of the boaters in Newport Harbor; and WHEREAS, the Department of Boating and Waterways is authorized to provide grants to cities, counties, districts, and other public agencies for the construction and development of boat pumpout /dump station facilities; and WHEREAS, the City of Newport Beach is willing to enter into an agreement to provide for the operation and maintenance of the proposed facilities at no cost to the State; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach by adoption of this resolution hereby requests that the Department of Boating and Waterways provide a grant for the purpose of developing a public use boat pumpout /dump station facility at Fernando Street and Bay Avenue; and BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach agrees to accept the grant and hereby authorizes the Mayor to sign the grant agreement and accept the grant for the purpose stated above. ADOPTED, This day of 2000. Mayor ATTEST: City Clerk 2 VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT (DBW REIMBURSEMENT) NEWPORT BEACH - FERNANDO AVENUE This contract is entered into on March 25, 2000, between the California Department of Boating and Waterways (DEPARTMENT) and the City of Newport Beach (GRANTEE). The DEPARTMENT and the GRANTEE agree as follows. L CONTRACT This contract incorporates EXHIBIT A, Standard Terms and Conditions. 2. GRANT The DEPARTMENT will make a grant for SEVENTY FIVE PERCENT (75 %) of the PROJECT COSTS for installation of a complete vessel pumpout facility at the Fernando Avenue Pier to the GRANTEE in accordance with EXHIBIT A; the grant shall not exceed the amount of TWENTY EIGHT THOUSAND DOLLARS ($28,000). 3. 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 JUNE 7, 1999 and hereinafter referred to as PROJECT) no later than December 30, 2000. 4. TERM OF CONTRACT (a) The term of this CONTRACT, subject to any provision for prior termination, shall begin on the effective date of the CONTRACT and shall continue for FIVE (5) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE. 0 0 5. USE FEES The GRANTEE may charge a fee for the use of the facilities constructed with the GRANT; however, such fees may only be used to defray operation and maintenance costs incurred from the operation of the vessel pumpout facility. The GRANTEE may charge a total fee of $5.00 for the use of the pumpout facilities constructed; the $5.00 fee may be increased or decreased annually in accordance with percentage changes in the United States Bureau of Labor Statistics Consumer Price Index (CPI) using the CPI index for December 1993 (436.8) as the base for any such adjustment. 6. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and continue to 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 system or other means. 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). 2 k1 • • 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, hours of operation, 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 below, first -class postage fully prepaid thereon: To DEPARTMENT: Department of Boating and Waterways 2000 Evergreen Street, Suite 100 Sacramento, California 95815 -3888 To GRANTEE: City of Newport Beach Attention: City Manager P. O. Box 1768 Newport Beach, California 92658 3 0 DBW VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT CITY OF NEWPORT BEACH Ez Title: Date Signed STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY Director Date Signed 0 EXHIBIT A VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ARTICLE I - DEFINITIONS A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS mean 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 the Harbors and Navigation Code Section 72.75 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 pumpout/dump 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: r7 • C� Be awarded in accordance with all applicable laws and regulations, including but not limited to competitive bidding. 2. Contain the following clause: "Representatives of 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, religion, color, age, national origin, or physical handicap, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 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 on request copies of such reports and data shall be provided 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 DEPARTMENT prior to any disbursement of funds. 0 0 0 B. 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. 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 except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents, and employees. 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 Section 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 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 by 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 DETERMINATION 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 This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X - INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this CONTRACT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this CONTRACT. 8 /p 9 0 ARTICLE XI - SUBJECT TO 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 be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this CONTRACT. 9 0 0 VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT (DBW REIMBURSEMENT) NEWPORT BEACH - FERNANDO AVENUE This contract is entered into on March 25, 2000, between the California Department of Boating and Waterways (DEPARTMENT) and the City of Newport Beach (GRANTEE). The DEPARTMENT and the GRANTEE agree as follows. 1. CONTRACT This contract incorporates EXHIBIT A, Standard Terms and Conditions. 2. GRANT The DEPARTMENT will make a grant for TWENTY FIVE PERCENT (25 %) of the PROJECT COSTS for installation of a complete vessel pumpout facility at the Fernando Avenue Pier to the GRANTEE in accordance with EXHIBIT A; the grant shall not exceed the amount of EIGHT THOUSAND DOLLARS ($8,000). 3. 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 JUNE 29, 1999 and hereinafter referred to as PROJECT) no later than December 30, 2000. 4. TERM OF CONTRACT (a) The term of this CONTRACT, subject to any provision for prior termination, shall begin on the effective date of the CONTRACT and shall continue for FIVE (5) years from such date. (b) This CONTRACT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the GRANTEE: /Z 0 9 5. USE FEES The GRANTEE may charge a fee for the use of the facilities constructed with the GRANT; however, such fees may only be used to defray operation and maintenance costs incurred from the operation of the vessel pumpout facility. The GRANTEE may charge a total fee of $5.00 for the use of the pumpout facilities constructed; the $5.00 fee may be increased or decreased annually in accordance with percentage changes in the United States Bureau of Labor Statistics Consumer Price Index (CPI) using the CPI index for December 1993 (436.8) as the base for any such adjustment. 6. SPECIAL PROVISIONS (a) 1. The pumpout facilities constructed under this grant shall be operated, maintained, and continue to 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 system or other means. 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). 2 13 3. Provide appropriate information at the pumpout station that indicates fees, restrictions, hours of operation, 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 below, first -class postage fully prepaid thereon: To DEPARTMENT: Department of Boating and Waterways 2000 Evergreen Street, Suite 100 Sacramento, California 95815 -3888 To GRANTEE: City of Newport Beach Attention: City Manager P. O. Box 1768 Newport Beach, California 92658 3 14 0 0 DBW VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT CITY OF NEWPORT BEACH Lm Title: Date Signed STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAY m Director Date Signed /S 0 EXHIBIT A VESSEL PUMPOUT FACILITY INSTALLATION CONTRACT STANDARD TERMS AND CONDITIONS ARTICLE I - DEFINITIONS A. CONTRACT means the contract to which these standard terms and conditions are appended. B. PROJECT COSTS mean 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 the Harbors and Navigation Code Section 72.75 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 pumpout/dump 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: 0 0 Be awarded in accordance with all applicable laws and regulations, including but not limited to competitive bidding. 2. Contain the following clause: "Representatives of 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, religion, color, age, national origin, or physical handicap, and that such provisions shall include, but not be limited to: employment, upgrading, promotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. 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 on request copies of such reports and data shall be provided 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 DEPARTMENT prior to any disbursement of funds. /% 0 0 B. 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. 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 except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents, and employees. 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 Section 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 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. i 0 0 ARTICLE VI - REMEDIES NOT EXCLUSIVE The use by 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 DETERMINATION 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 This CONTRACT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE X - INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this CONTRACT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this CONTRACT. E /9 ARTICLE XI - SUBJECT TO 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 be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this CONTRACT. 0 RESOLUTION NO. 2000- 28 0 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REQUESTING A GRANT IN THE AMOUNT OF $36,000 FROM THE DEPARTMENT OF BOATING AND WATERWAYS FOR THE INSTALLATION OF A NEW PUMPOUT STATION AT FERNANDO STREET AND BAY AVENUE. WHEREAS, the City of Newport Beach desires to install a boat pumpout /dump station facility at the Public Pier at Fernando Street and Bay Avenue to meet the needs of the boaters in Newport Harbor; and WHEREAS, the Department of Boating and Waterways is authorized to provide grants to cities, counties, districts, and other public agencies for the construction and development of boat pumpout /dump station facilities; and WHEREAS, the City of Newport Beach is willing to enter into an agreement to provide for the operation and maintenance of the proposed facilities at no cost to the State; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Newport Beach by adoption of this resolution hereby requests that the Department of Boating and Waterways provide a grant for the purpose of developing a public use boat pumpout /dump station facility at Fernando Street and Bay Avenue; and BE IT FURTHER RESOLVED that the City Council of the City of Newport Beach agrees to accept the grant and hereby authorizes the Mayor to sign the grant agreement and accept the grant for the purpose stated above. ADOPTED, this 2811, day of March, 2000. ATTEST: s 0 STATE OF CALIFORNIA } COUNTY OF ORANGE CITY OF NEWPORT BEACH } I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing resolution, being Resolution No. 2000 -28 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 28th day of March, 2000, and that the same was so passed and adopted by the following vote, to wit: Ayes: Thomson, Glover, Adams, Debay, Ridgeway, O'Neil, Mayor Noyes Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 29th day of March, 2000. City Clerk Newport Beach, California (Seal)