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HomeMy WebLinkAboutDoc 396 - Renew Marine Bd Agrmt - SODeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of July 24, 2013 DATE: July 11,2013 FROM: Darryl Nakahira Department: Sheriffs Office Phone # 541-617-3369 TITLE OF AGENDA ITEM: Consideration of Board Signature of Document 2013-396, the annual Boating Safety and Law Enforcement Services Agreement between Deschutes County, by and through its Sheriffs Office, and the State of Oregon, by and through its Marine Board. PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: This is an annual agreement between the County and the State of Oregon Marine Board. The Sheriffs Office has entered similar agreements with the Marine Board for over 10 years. As in previous years, this agreement will partially fund the Sheriffs Office to provide law enforcement services and promote boater safety on certain lakes and rivers within Deschutes County. Examples ofthe services provided by the Sheriffs Office include investigating boating under the influence violations, investigating boating accidents, alerting the public to unsafe boating conditions and participating in public boater education. FISCAL IMPLICATIONS: The State will pay $155,291.75 for the 2014 budget year. The Sheriffs Office has budgeted $17,366.50 to cover the remaining costs of the program. RECOMMENDATION & ACTION REQUESTED: Sign Document No. 2013-396, the annual Boating Safety and Law Enforcement Services agreement between the Sheriffs Office and the Oregon State Marine Board. ATTENDANCE: Darryl Nakahira, Sheriffs Office Legal Counsel DISTRIBUTION OF DOCUMENTS: Call Pat Davis, Sheriffs Office Legal Assistant, x3367, or email when ready for pick up. DESCHUTES COUNTY DOCUMENT SUMMARY Date: July 11,2013 Department: Sheriff's Office Contractor/Supplier/Consultant Name: Oregon State Marine Board Contractor Contact: Ginger Davis Contractor Phone: 503-378-2621 Type of Document: Intergovernmental Agreement No. 2013-396 between Deschutes County, by and through its Sheriff's Office, and the State of Oregon, by and through its State Marine Board. Goods and/or Services: This is an annual agreement the County enters into with the State Marine Board. This agreement will partially fund the Sheriffs Office to provide law enforcement services on certain lakes and rivers within Deschutes County. Background & History: For over 10 years, the Sheriffs Office has entered an annual agreement with the State Marine Board to provide boating safety and law enforcement services in order to promote safe boating practices. Examples of the services to be provided by the Sheriff's Office include investigating boating under the influence violations, investigating boating accidents, alerting the public to unsafe boating conditions, and participating in public boater education. Agreement Starting Date: July 1, 2013 Ending Date: June 30, 2014 Annual Value or Total Payment: The State funding is $155,291.75 and the Sheriff's Office has budgeted $17,366.50 to cover the remaining costs of the program. Check all that apply: o RFP, Solicitation or Bid Process o Informal quotes «$150K) ~ Exempt from RFP, Solicitation or Bid Process (specify see DCC §2.37) Funding Source: (Included in current budget? ~ Yes 0 No If No, has budget amendment been submitted? 0 Yes 0 No Is this a Grant Agreement providing revenue to the County? 0 Yes ~ No Darryl Nakahira, Legal Counsel , Sheriffs Office 5 1-7-3369 Sheriff's Approva I: -7"I=~---+-~~~-:I---- Date Distribution of Document: Call Pat Davis, Sheriffs Office Legal Assistant, x 3367, or email when ready for pick up . Official Review: County Signature Required (check one): IZI BOCC D Department Director (if <$25K) D Administrator (if >$25K but <$150K; if >$150K, BOCC Order No . ____~) Legal Review ~~ Date 7 /, I J 1.3 Docwnent Number 2013-396 6 ORIGINAL Intergovernmental Cooperative Agreement Between Oregon State Marine Board & Deschutes County This agreement is entered into by the State of Oregon through the Oregon State Marine Board and Deschutes County under the authority of ORS 830.110 and ORS Chapter 190. 1. Cooperators This cooperative agreement is between the Oregon State Marine Board ; hereafter called 5MB and Deschutes County, hereafter called Agency . 2 . Term of Agreement The period of the agreement shall be from July 1, 2013, to June 30, 2014. 3. Services Provided by Agency Agency agrees to: A. Enforce the applicable pro v isions of the Oregon Revised Statutes, Chapters 830 and 704 and Oregon Administrative Rules, Chapter 250. B. Investigate complaints of boating law violations and boating accidents as specified in the 5MB Policy and Procedures Manual, revised most recently in 2005, incorporated by reference herein . C. Alert the public to unsafe boating conditions. D. Assign duties under this agreement to personnel who have completed training and received cert ification at the Marine Law Enforcement Academy. Boating law enforcement personnel assigned by the Agency shall be mentally and physically capable of performing required duties. Standards of performance, discipline of officers and the control of personnel perform i ng services pursuant to this agreement shall be the responsibility of the Agency. The Agency agrees that assigned personnel shall wear a Coast Guard approved personal flotation device (life jacket) while on board a boat. E. Provide assistance to boaters and provide search and rescue services as noted in the policy and procedures manual. F. Provide law enforcement examinations of boats. G. Carry out all aspects of the Boating Safety Action plan described in Exhibit A, attached hereto and incorporated by reference herein. H. Provide 5MB with monthly activity reports to the 5MB database by the end of each month. I. Send quarterly invoices to: Boating Safety Program Financial Analyst, Oregon State Marine Board , 435 Commercial St. NE , Salem, OR 97309 . Invoices must be submitted within forty­ five (45) days following the end of the quarter. J. Furnish and supply all necessary labor, superv ision, equipment, communications, facilities and supplies necessary to provide the level of service required to fulfill this agreement. 4. Services Provided by 5MB 5MB agrees to: A. Provide Agency an orientation to 5MB policies, regulations, and administrative rules necessary to meet the purpose of this agreement. B. Provide required training through the Marine law Enforcement Academy held once a year. C. Provide funds for the purchase of patrol boats, required equipment, fuel, and boat maintenance. D. Provide access to and training for the use of 5MB's law enforcement data base. E. Make payment to Agency within 30 days of receiving and approving invoice from Agency. 5. Boat Ownership A. The ownership of any boat purchased by the Agency during the term of this agreement shall be vested with the Agency regardless of funding source, subject to Section SB and Section 9. B. During the term of this agreement and for the useful life ofthe boat or major piece of equipment, the Agency agrees to maintain in good working condition any boat or major piece of equipment purchased in whole or in part by the Agency with funds received from 5MB, pursuant to this agreement and prior agreements between Agency and 5MB. Preventative maintenance schedules for boats and trailers will be established and adhered to. Further, upon the trade-in or sale of a boat or major piece of equipment purchased, in whole or part, with funds received pursuant to this agreement, Agency shall apply any proceeds from the trade-in or sale to law enforcement activities approved by 5MB, with such approval not to be unreasonably withheld. Notwithstanding Section 9, upon default of this Agreement or notice from 5MB to Agency of the termination of funding described in ORS 830.140, all boats and major pieces of equipment purchased, in whole or in part, with funds received pursuant to this agreement, or previous agreement between the 5MB and Agency, shall be returned to the 5MB for reassignment if 5MB requests that the boat or major pieces of equipment be returned to 5MB. Upon 5MB's request, Agency agrees to permit the transfer of a boat purchased, in whole or part, with funds received pursuant to this agreement, to another county. 6. Consideration A. The 5MB will, upon receipt and approval of expenditure documentation, pay to the Agency an amount not to exceed $155,291.75 for the agreement term. Payment requests shall be only for authorized services provided by the Agency pursuant to this agreement and for costs actually incurred by the Agency in conjunction with such services (including salaries, supplies or purchases of boats/equipment). B. Agency shall be responsible for providing employment-related benefits and deductions that are required by law, including but not limited to federal and state income tax deductions, workers' compensation coverage, and contributions to the Public Employees Retirement System. 7. Insurance/Indemnification A. If any third party makes any claim or brings any action, suit or proceeding alleging a tort as now or hereafter defined in ORS 30.260 ("Third Party Claim") against a party (the "Notified Party") with respect to which the other party ("Other Party") may have liability, the Notified Party must promptly notify the Other Party in writing of the Third Party Claim and deliver to the Other Party a copy of the claim, process, and all legal pleadings with respect to the Third Party Claim. Either party is entitled to participate in the defense of a Third Party Claim, and to defend a Third Party Claim with counsel of its own choosing. Receipt by the Other Party of the notice and copies required in this paragraph and meaningful opportunity for the Other Party to participate in the investigation, defense and settlement of the Third Party Claim with counsel of its own choosing are conditions precedent to the Other Party's liability with respect to the Third Party Claim. With respect to a Third Party Claim for which the 5MB is jointly liable with the Agency (or would be if joined in the Third Party Claim), the 5MB shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by the Agency in such proportion as is appropriate to reflect the relative fault of the 5MB on the one hand and of the Agency on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the 5MB on the one hand and of the Agency on the other hand shall be determined by reference to, among other things, the parties' relative intent, knowledge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. The 5MB's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law if the 5MB had sole liability in the proceeding. With respect to a Third Party Claim for which the Agency is jointly liable with the 5MB (or would be if joined in the Third Party Claim), the Agency shall contribute to the amount of expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by the 5MB in such proportion as is appropriate to reflect the relative fault of the Agency on the one hand and of the 5MB on the other hand in connection with the events which resulted in such expenses, judgments, fines or settlement amounts, as well as any other relevant equitable considerations. The relative fault of the Agency on the one hand and of the 5MB on the other hand shall be determined by reference to, among other things, the parties' relative intent, know/edge, access to information and opportunity to correct or prevent the circumstances resulting in such expenses, judgments, fines or settlement amounts. The Agency's contribution amount in any instance is capped to the same extent it would have been capped under Oregon law if it had sole liability in the proceeding. I B. Alternative Dispute Resolution. The parties should attempt in good faith to resolve any dispute arising out of this agreement. This may be done at any management level, including at a level higher than persons directly responsible for administration of the agreement. In addition, the parties may agree to utilize a jointly selected mediator or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation. C. Indemnification by Subcontractors. The Agency shall take all reasonable steps to cause its contractor(s) that are not units of local government as defined in DRS 190.003, if any, to indemnify, defend, save and hold harmless the State of Oregon and its officers, employees and agents ("lndemniteelJ) from and against any and all claims, actions, liabilities, damages, losses, or expenses (including attorneys' fees) arising from a tort (as now or hereafter defined in DRS 30.260) caused, or alleged to be caused, in whole or in part, by the negligent or willful acts or omissions of Agency's contractor or any of the officers, agents, employees or subcontractors of the contractor( "ClaimslJ). It is the specific intention of the parties that the Indemnitee shall, in all instances, except for Claims arising solely from the negligent or willful acts or omissions of the Indemnitee, be indemnified by the Agency's contractor from and against any and all Claims. D. During the term of this agreement, the Agency shall provide insurance to cover all loss,' damage or injury to the equipment purchased under this agreement, in an amount no less than the purchase price thereof. Such insurance shall be provided by the Agency through an insurer duly authorized to do business in the State of Oregon but may be provided by self-insurance. Any proceeds from insurance or self-insurance shall be applied to the repair or replacement of the damaged equipment unless the Agency received prior written direction or authorization from the 5MB to otherwise dispose of the proceeds. E This agreement is subject to all applicable federal Assurances specified in Attachment 1 attached hereto and by this reference made a part hereof. If applicable, Agency shall provide the 5MB its Annual Comprehensive Financial Report as required in the Single Audit Act of 1984,31 U.s.c. §§7501-7507 (1994) as amended by Pub.L. 104-156, §§ 1-3, 110 Stat. 1397 (1996). At the end of each fiscal year during the term of this agreement, the Agency will be notified of the amount of federal pass-through dollars included in the payments made by the 5MB to the Agency during that fiscal year. 8. Access to Records Agency shall maintain all fiscal records relating to this agreement in accordance with generally accepted accounting principles. In addition, Agency shall maintain any other records pertinent to this agreement so as to document their performance. Agency acknowledges and agrees that representatives of the 5MB and the Oregon Secretary of State's Office and the federal government shall have access to fiscal records and other documents of the Agency that are pertinent to this agreement to perform examinations and audits. Agency shall retain and keep I accessible all such fiscal records and documents for a minimum of seven (7) years, or such longer period as may be required by federal law, following final payment and termination of this agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this agreement, whichever date is later. 9. Security Interest Agency, in consideration of 5MB's provision of services described in section 4, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants 5MB a continuing security interest in and so pledges and assigns to 5MB all of the rights of Agency and all proceeds and products in the boats and equipment purchased pursuant to 5MB's authority under ORS 830.140, including, but not limited to this agreement ("Collateral"). Agency hereby irrevocably authorizes 5MB at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any financing statements and amendments thereto to complete the attachment, perfection and first priority of, and the ability of 5MB to enforce, 5MB's security interest in the Collateral, including, but not limited to, causing 5MB's name to be noted as secured party on any certificate of title for a titled good. Agency will not, or will not offer to, sell or otherwise dispose of the Collateral or any interest in the Collateral except with receipt of 5MB's prior written approval. Upon the failure by Agency to keep, observe or perform any provision of this agreement, without any other notice to or demand upon Agency, 5MB shall have in any jurisdiction in which enforcement of this agreement is sought, in addition to all other rights and remedies, all rights, privileges, powers and remedies of a secured creditor provided by the Uniform Commercial Code and any additional rights and remedies which may be provided to a secured party in any jurisdiction in which the Collateral or a part thereof is located, at law, in equity, or otherwise, including, without limitation, its right to take immediate possession of the Collateral. 10. Termination A. This agreement may be terminated by mutual consent of both parties. B. 5MB may terminate this agreement effective upon delivery of written notice to Agency under any of the following conditions. 1. If 5MB's funding is not continued at levels sufficient to allow for purchase of the specified services. The agreement may then be modified to accommodate a reduction in funds. 2. If the Agency commits any material breach or default of any aspect of this agreement and such breach, default or failure is not cured within such 20-day period after delivery of the Board's notice. C. Agency may terminate this agreement if the SM B commits any material breach or default of any aspect of this Agreement and such breach, default or failure is not cured within such 20­ day period after delivery of the Agency's notice. D. Either party may terminate this Agreement upon 60 days written notice to the other party. E. Sections 5, 7, 8 and 9, shall survive termination of the Agreement. I 11. Force Majeure If either Agency or 5MB is rendered unable to perform its duties under this agreement due to acts of God, riot, war, terrorism, bioterrorism, civil unrest, flood, earthquake, power outage, or government fiat (a "Force Majeure Event"), then during the Force Majeure Event, but for no longer period, the obligations of such Party will be suspended (or reduced, as applicable) to the extent the Force Majeure Event makes performance impOSSible. During the occurrence of a Force Majeure Event, the Agency shall use best efforts to continue to perform its duties under this agreement to the maximum extent possible notwithstanding such occurrence. Upon the occurrence of a Force Majeure Event, 5MB is obligated to pay only for those deliverables actually delivered and accepted by 5MB. If the Force Majeure Event continues to prevent performance for a period of thirty (30) consecutive days, then 5MB has the right to suspend its performance or terminate this agreement or both. 12. Amendments The terms of this agreement shall not be waived, altered, or amended, in any matter whatsoever, except by written consent by both parties. 13. Condition of Performance In accordance with 44 CFR 13.36(i), the 5MB's performance is conditioned upon the Agency's compliance with federal, state and local laws and regulations, including but not limited to, the following: A. Agency shall comply and, if applicable, require a subcontractor to comply, with the applicable audit requirements and responsibilities set forth in the Office of Management and Budget Circular A-133 entitled "Audits of States, Local Governments and Non-Profit Organizations." B. The applicable Code of Federal Regulations (CFR) sections and OMB Circulars governing expenditure of federal funds. State, local and Indian Tribal Governments and governmental hospitals must follow OMB A-102. Agency shall ensure any organization to which funds are passed comply with CFR and OMB requirements C. All applicable standards, orders, or requirements issued under section 306 of the Clean Air Act (42 U.S.c. 1857(h)), section 508 of the Clean Water Act (33 U.s.C. 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15). D. Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub.L. 94-163, 89 Stat. 871). E. Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13,1967, and as supplemented in Department of Labor regulations (41 CFR chapter 60). F. The Copeland "Anti-Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). G. The Davis-Bacon Act (40 U.S.C. 276a to 276a-7) as supplemented by Department of Labor regulations (29 CFR Part 5). H. Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.c. 327­ 330) as supplemented by Department of labor regulations (29 CFR Part 5). 14. Designation of Forum and Choice of law: Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. This document constitutes the entire agreement between the parties. The 5MB and Agency are the only parties to this agreement and are the only parties entitled to enforce its terms. The Agency, by the signature below of its authorized representative, does acknowledge that it has read this agreement and agrees to its terms and conditions. Signatures: State Marine Board Deschutes County , Date BOARD OF COUNTY COMMISSIONERS DESCHUTES COUNTY, OREGON: Alan Unger, Chair Tammy Baney, Vice ChairATTEST: Anthony DeBone, CommissionerRecording Secretary Dated this day of _____, 2013 I !