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(continued) ing pier or mooring place:
(a) Exacts or demands all or part of a broker's fee or commission from the sale by the owner or any other licensed broker or salesman of any yacht or boat moored at said landing pier or mooring place solely because said yacht or boat was or is moored at such pier or landing place;
(b) Expels or denies or refuses to permit the continued use or lease of such landing pier or mooring place by an owner of a boat or yacht for the reason that said boat or yacht is listed for sale with another licensee;
(c) Expels or denies or refuses to permit the continued use or lease of such landing pier or mooring place by the purchaser of a boat or yacht moored at such landing pier or mooring place because another licensee had made the sale of such boat or yacht.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Sections 732 and 733, Harbors and Navigation Code.
s 7616. Definite Place of Business.
A definite place of business shall mean premises owned, rented, or leased by the broker which premises shall be locatable at a street address or road intersection and/or slip number, if applicable. A post office box and/or telephone number shall not be considered a definite place of business.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Section 735, Harbors and Navigation Code.
s 7617. Branch Offices.
(a) Any broker who regularly transacts business at a location other than his established principal office, or who employs other brokers or salesmen to do so shall be deemed to be maintaining a branch office at such location.
(b) A temporary exhibit of less than three weeks duration at a county or state fair or an organized boat or sport show shall not be deemed a branch office.
(c) If a broker uses more than one fictitious business name at the same location, a separate branch office license shall be obtained in addition to the current principal or branch office license at that location.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Sections708 and 735, Harbors and Navigation Code.
s 7618. Identification Card.
(a) A broker's identification card shall be issued only to the person named on the license, and there shall also appear on such card the name of the corporation, partnership or association which he represents. The broker to whom such identification card is issued shall place his signature thereon.
(b) A salesman's identification card shall be issued only to a licensed salesman, and shall bear the name of the employing licensed broker. The salesman shall place his signature thereon.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Section 735, Harbors and Navigation Code.
s 7619. Broker-Salesman Relationship Agreement.
Every broker shall have a written agreement with each of his salesmen, whether licensed as a salesman or as a broker under a broker-salesman arrangement. The agreement shall be dated and signed by the parties and shall cover material aspects of the relationship between the parties.
Signed copies of the agreement shall be retained by the parties thereto, and shall be available for inspection by the department or its designated representative on request.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Section 703, Harbors and Navigation Code.
s 7620. Retention of Records.
A licensed broker shall retain for four years copies of all listings, deposit receipts, cancelled checks, trust records, and other documents executed by him or obtained by him in connection with a transaction for which a Yacht and Ship Broker's License is required. Upon request, these records shall be made available to the Department for their inspection.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Sections 703, 714, 715 and 716, Harbors and Navigation Code.
s 7621. Government Office.
When the holder of a Yacht and Ship Broker or Salesman's License is required to relinquish his license to assume an office in local, state, or federal government, he may have it reinstated at any time within six months of termination of his service in such office upon payment of the appropriate renewal fee.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Section 724, Harbors and Navigation Code.
s 7622. Property Taxes.
Any agreement between a buyer and seller of a yacht negotiated by a broker to prorate personal property taxes for a twelve-month period shall specify the applicable tax year and the date of the commencement of such twelve-month period, and shall clearly state the actual amounts payable by the seller and buyer.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Sections 703 and 716, Harbors and Navigation Code.
s 7623. Offers.
(a) The licensee must present or cause to be presented to the owner of the vessel any offer to purchase received prior to the completion of a sale, unless expressly instructed by the owner not to present such an offer.
(b) A licensee shall not present competing offers to purchase avessel to the owner in such manner as to induce the owner to accept an offer which will provide the greatest compensation to the licensee, without regard to the benefits, advantages, and/or disadvantages to the owner.
Note: Authority cited: Section 703, Harbors and Navigation Code. Reference: Sections 709 and 716(c), Harbors and Navigation Code.
s 7700. Definitions.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code. Reference: Sections 610, 611, 612, 615, 616, 617, 618, 620 and 622, Harbors and Navigation Code.
s 7701. Applications for Certificate of Registration of a Small Boat Towing Service.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code. Reference: Sections 611, 615, 616 and 622, Harbors and Navigation Code.
s 7702. Requirements for Certificate of Registration.
Note: Authority cited: Sections 615, 621 and 652, Harbors and Navigation Code. Reference: Chapter 4.3 (commencing with section 610), Division 3, Harbors and Navigation Code; and Section 1760.5, Insurance Code.
s 7703. Partnership Certificate of Registration.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code. Reference: Section 611, 612 and 615, Harbors and Navigation Code.
s 7704. Corporation Certificate of Registration.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code. Reference: Section 611, 612 and 615, Harbors and Navigation Code.
s 7705. Authorized Operators.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code. Reference: Sections 611, 612, 615 and 622, Harbors and Navigation Code.
s 7706. Grounds for Refusal to Issue Certificate of Registration.
s 7707. Suspension of Certificate of Registration.
s 7707.1. Refusal to Issue.
Note: Authority cited: Sections 621 and 652, Harbors and Navigation Code.
s 7708. Provisions Affecting Use of Certificate of Registration.
s 7709. Time Periods for Processing.
s 7710. Arbitration Fees.
s 8000. Criteria for Required Boating Safety Course.
(a) The Department shall approve and maintain an approved listing of boating safety education courses.
(b) Boating safety education courses approved by the Department shall be general, entry level courses. The courses shall contain at least the following elements or subjects:
(1) Boating laws and regulations
(2) Rules of the road and navigational lights
(3) Safety and responsibility
(4) Required equipment
(5) Basic boat handling
(6) Navigational aids (Uniform State Waterway Marking System)
(7) Boating operation emergencies and accidents
(8) Alcohol
(9) Weather.
(c) The certificate for completion and passage of the course shall include:
(1) The name of the person passing the course.
(2) Date of course completion.
(3) The name of the organization that provided the course.
(4) A statement that the course has been approved by the California Department of Boating and Waterways.
(d) The fees for these approved boating education courses shall not exceed the expenses associated with providing the courses.
Note: Authority cited: Section 668.1, Harbors and Navigation Code. Reference: Sections 655, 655.2, 658, 658.5 and 668.1, Harbors and Navigation Code; and section 191.5, Penal Code.
s 8100. Purpose.
The purpose of the selection process for private architectural, landscape architectural, engineering, environmental, land surveying and construction project management firms is to provide procedures that assure such services are engaged on the basis of demonstrated competence and qualifications for the types of services to be performed, at fair and reasonable prices to the Department of Boating and Waterways.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525 and 4526, Government Code.
s 8100.1. Definitions.
The following definitions shall be used in this article.
(a) "Architectural, landscape architectural, engineering, environmental, land surveying services" includes those professional services of an architectural, landscape architectural, engineering, environmental, or land surveying nature as well as incidental services that members of these professions and those in their employ may logically or justifiably perform.
(b) "Construction project management" means those services provided by a licensed architect, registered engineer, or licensed general contractor which meet the requirements of Section 4529.5 of the Government Code for management and supervision of work performed on state construction projects.
(c) "Contract" means any agreement entered into by the Department for architectural, landscape architectural, engineering, environmental, land surveying, and construction project management services.
(d) "Department" means the Department of Boating and Waterways.
(e) "Firm" means any individual, firm, partnership, corporation, association, or other legal entity permitted by law to practice the professions of architecture, landscape architecture, engineering, environmental services, land surveying or construction project management.
(f) "Multiple Contracts" means contracts that may be awarded to multiple firms.
(g) "On-Call Contracts" means contracts for projects that involve more than one component, site, or activity.
(h) "Single Firm Contract" means a contract that is let to the single most qualified firm.
(i) "Small Business" is a firm that meets the definition of "small business" provided in Government Code Section 14837.
(j) "Specific Project Contract" is a contract for a project that involves a single subject matter and may result in a single contract.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525, 4526 and 14837 Government Code.
s 8100.2. Contract Types.
(a) The Department may utilize specific project contracts, single firm contracts, multiple contracts, or on-call contracts depending on the specific situation. All contract types are subject to this Article.
(b) Multiple contracts may be awarded for contracts that cover different, specific geographic regions; contracts that encompass different specific, unique disciplines; or contracts for which there would be a primary contractor, with a backup contractor in the event the primary contractor is unavailable for the assignment.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4525 and 4526, Government Code.
s 8100.3. Selection Criteria.
The Department shall establish selection criteria that will comprise the basis for the selection of eligible firms to perform the required services. The criteria may include such factors as professional experience of the firm in performing services of similar nature; quality and relevance of recently completed or ongoing work; reliability, continuity, and location of firm to the project site; staffing capability; education and experience of key personnel to be assigned; knowledge of applicable regulations and technology associated with the services required; specialized experience of the firm in the services to be performed; participation as small business firm; and other factors the Department deems relevant to the specific task to be performed.
The Department may weigh these factors according to the nature of the proposed project, the complexity and special requirements of the specific services, and the needs of the Department.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526, 4527 and 4529.5, Government Code.
s 8100.4. Request for Qualifications.
(a) A statewide announcement of each proposed project shall be published in the California State Contracts Register, in accordance with the Government Code (commencing with Section 14825), and in the publications of the respective professional societies. Failure of any professional society to publish the announcement shall not invalidate any contract.
(b) The announcement for each proposed project shall include, at a minimum, a brief description of the services required, location and duration of services, criteria upon which the award will be made, submittal requirements, contact person for the Department, and the final response date for receipt of statements from firms of their demonstrated competence and professional qualifications.
(c) The Department shall identify potentially qualified small business firms interested in contracting with the Department, and shall provide copies of project announcements to those small business firms that have indicated an interest in receiving the announcements. Failure of the Department to send a copy of an announcement to any firm shall not invalidate any contract.
Note: Authority cited: Section 4526, Government Code. References: Sections 4526, 4527 and 14825, Government Code.
s 8100.5. Annual Submission of Qualifications.
In compliance with Government Code section 4527, interested firms may submit their qualifications and performance data to the Department annually throughout the year. The Department may consider such qualifications and performance data when selecting a contractor in accordance with Section 8100.6. Such qualifications and performance data that are on file with the Department for longer than one year, and not subsequently renewed or refiled, shall not be considered by the Department in its selection process.
Note: Authority cited: Section 4527, Government Code. Reference: Section 4527, Government Code.
s 8100.6. Selection of Qualified Firms.
(a) After the expiration of the final response date in the published project announcement, the Department shall review and evaluate the written statements of demonstrated competence and professional qualifications using the selection criteria in the published project announcement, and rank, in order of preference, the firms determined as most highly qualified to perform the required services.
(b) The Department shall conduct discussions with at least the three most eligible firms, or a lesser number if fewer than three eligible firms have responded, about anticipated concepts and the benefit of alternative methods for furnishing the required services. From the firms with which discussions are held, the Department shall select, in order of preference, not less than three firms, or lesser number if fewer than three eligible firms responded, deemed to be the most highly qualified to perform the required services.
Note: Authority cited: Section 4526, Government Code. Reference: Sections 4526 and 4527, Government Code.
s 8100.7. Negotiation.
(a) From among the firms selected in Section 8100.6, as most highly qualified to perform the services required, the Department shall attempt to negotiate a satisfactory contract with the best qualified firm at a compensation which the Department determines is fair and reasonable.
(b) If the Department is unable to negotiate a satisfactory contract with the best qualified firm at a compensation which the Department determines is fair and reasonable, negotiations with that firm shall be terminated and negotiations undertaken with the second best qualified firm. If unable to negotiate a satisfactory contract with the second best qualified firm at a compensation which the Department determines is fair and reasonable, negotiations with that firm shall be terminated and negotiations undertaken with the third best qualified firm. If unable to negotiate a satisfactory contract with the third best qualified firm at a compensation which the Department determines is fair and reasonable, negotiations with that firm shall be terminated.
(c) Where the Department is unable to negotiate a satisfactory contract in accordance with subsections (a) and (b), the Department shall continue the negotiations process with the remaining qualified firms, if any, in order of preference, until a satisfactory contract is reached. If unable to negotiate a satisfactory contract with any of the qualified firms, the Department shall abandon the negotiation process for the required services.
Note: Authority cited: Section 4526, Government Code. References: Sections 4527 and 4528, Government Code.
s 8100.8. Estimated Value of Services.
(a) Before entering into discussion with any firm selected pursuant to Section 8100.6, Department staff shall prepare an estimate of the value of the proposed contract, based upon accepted rates for comparable services. The estimate will serve as a guide in determining fair and reasonable compensation in the negotiation of a satisfactory contract in accordance with the provisions of Section 8100.7, and shall not be disclosed until award of the contract or abandonment of the negotiation process for the services to which it relates.
(b) At any time the Department determines the estimate prepared in accordance with (a) to be unrealistic for any reason, the Department shall reevaluate the estimate and, if necessary, modify the estimate.
Note: Authority cited: Section 4526, Government Code. References: Sections 4526 and 4528, Government Code.
s 8100.9. Amendments.
Where the Department determines that a change in the contract is necessary during the performance of the services, the parties may, by mutual consent, in writing, agree to modifications, additions or deletions in the general terms, conditions and specifications for the services involved, with a reasonable adjustment in the firm's compensation.
Note: Authority cited: Section 4526, Government Code. References: Sections 4527 and 4528, Government Code.
s 8100.10. Contracting in Phases.
Where the Department determines it is necessary or desirable for a project to be performed in separate phases, the Department may negotiate a partial compensation for the initial phase of the services required; provided, however, the Department first determines that the firm selected is best qualified to perform the entire project. The contract shall include a provision that the Department may, at its option, utilize the firm to perform other phases of the services at a compensation which the Department determines is fair and reasonable, to be later negotiated and included in a mutual written agreement. In the event that the Department exercises its option under the contract to utilize the firm to perform other phases of the project, the procedures of Sections 8100.7 and 8100.8, regarding estimates of value of services and negotiation shall be followed.
Note: Authority cited: Section 4526, Government Code. References: Sections 4526 and 4528, Government Code.
s 8100.11. Department's Power to Require Bids.
If the Department determines that the services are technical in nature and involve little professional judgment and that requiring bids would be in the public interest, a contract may be awarded on the basis of competitive bids and not the procedures of this Article.
Note: Authority cited: Section 4526, Government Code. References: Section 4529, Government Code.
s 8100.12. Unlawful Considerations.
Each contract shall include a provision by which the firm warrants that the contract was not obtained or secured through rebates, kickbacks or other unlawful considerations either promised or paid to any Department employee. Failure to adhere to this warranty may be cause for contract termination and recovery of damages under the rights and remedies due the Department under the default provision of the contract.
Note: Authority cited: Section 4526, Government Code. References: Section 4526, Government Code.
s 8100.13. Prohibited Relationships.
No Department employee who participates in the evaluation or selection process leading to award of a contract shall have a relationship with any of the firms seeking that contract, if that relationship is subject to the prohibition of Government Code Section 87100.
Note: Authority cited: Sections 4526 and 4527, Government Code. References: Sections 4526, 4527, 87100 and 87102, Government Code.
Note: Authority cited: Section 21082, Public Resources Code; and Section 63.9, Harbors and Navigation Code. Reference: Sections 21000, 21174, Public Resources Code; and Sections 71.4 and 72.5, Harbors and Navigation Code.
s 8600. General Provisions.
The Political Reform Act, Government Code Sections 81000, et seq., requires state and local government agencies to adopt and promulgate Conflict of Interest Codes. The Fair Political Practices Commission has adopted a regulation, Title 2 California Code of Regulations Section 18730, which contains the terms of a standard Conflict of Interest Code, which can be incorporated by reference, and which may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act after public notice and hearings. Therefore, the terms of Title 2 California Code of Regulations Section 18730 and any amendments to it duly adopted by the Fair Political Practices Commission, along with the attached Appendix in which officials and employees are designated and disclosure categories are set forth, are hereby incorporated by reference and constitute the Conflict of Interest Code of the Department of Boating and Waterways.
Pursuant to Title 2 of the California Code of Regulations Section 18730, designated employees shall file statements of economic interests with their agencies. Upon receipt of the statements of the Director and Commissioners, the agency shall make and retain a copy and forward the original of these statements to the Fair Political Practices Commission.
Note: Authority cited: Sections 87300 and 87304, Government Code. Reference: Section 87300, et seq., Government Code.
Appendix
Designated Disclosure
Employees/Division Category
Executive Office
Department Director......................................... 1
Deputy Director............................................. 1
Staff Counsel............................................... 2
Legislation, Public Information & Regulations
Senior Boating Administrator/Division Chief................. 2
Associate Governmental Program Analyst...................... 2
Boating Facilities Division
CEA/Division Chief.......................................... 2
Supervising Civil Engineer.................................. 2
Senior Engineering Geologist................................ 2
Oceanographer............................................... 2
Staff Services Manager...................................... 2
Aquatic Pest Control Program Manager........................ 2
Aquatic Pest Control Assistant Program Manager.............. 2
Senior Civil Engineer....................................... 2
Associate Civil Engineer.................................... 2
Civil Engineering Associate................................. 2
Assistant Civil Engineer.................................... 2
Junior Civil Engineer....................................... 2
Boating Facilities Manager II............................... 2
Project Managers............................................ 2
Associate Landscape Architect............................... 2
Associate Governmental Program Analyst...................... 2
Staff Services Analyst...................................... 2
Environmental Scientist..................................... 2
Administrative Services Division
Staff Services Manager/Division Chief....................... 2
Business Services Officer................................... 2
Staff Information Systems Analyst (Supervisor).............. 2
Associate Information Systems Analyst (Specialist).......... 2
Assistant Information Systems Analyst....................... 2
Boating Operations Division
Staff Services Manager/Division Chief....................... 2
Staff Services Manager...................................... 2
Associate Governmental Program Analyst...................... 2
Staff Services Analyst...................................... 2
Program Managers............................................ 2
Department Wide
Consultants [FNa1].......................................... 1
Members of the Boating and Waterways Commission............. 2
[FNa1]Consultants shall be included in the list of designated employees and
shall disclose pursuant to the broadcast disclosure category in the code
subject to the following limitation: The director may determine in writing
that a particular consultant, although a "designated position," is hired to
perform a range of duties that is limited in scope and thus is not required
to comply fully with the disclosure requirements described in this section.
Such determination shall include a description of the consultant's duties
and, based upon that description, a statement of the extent of disclosure
requirements. The director's determination is a public record and shall be
retained for public inspection in the same manner and location as this
conflict of interest code.
Disclosure Categories
1. Every person in Category 1 must disclose all investments, interests in real property, income and his or her status as a director, officer, partner, trustee, employee or holder of any position of management in any business entity.
2. Every person in Category 2 must disclose investments, interests in real property, income and his or her status as a director, officer, partner, trustee, employee or holder of any position of management in a business entity, if the business entity, source of income or real property is:
(a) subject to or foreseeably may be subject to any laws of the State of California relating to the control of recreational boating, or subject to any rules or regulations promulgated by the Department of Boating and Waterways;
(b) one which has contracted, or in the future foreseeably may contract with the Department to provide services, supplies, materials, machinery, instrumentation, or equipment to the Department;
(c) associated with the manufacture, distribution, sale, repair, or advertisement of recreational boating, marine equipment and supplies or other related products;
(d) regularly engaged in the business of environmental impact reports or environmental impact statements; or
(e) an interest in real property in or contiguous to recreational boating facilities.