50-80500-24-EM106_80500 DOT_Approved Emergency Procurement_FY25_Stampede_7.31.2024 Corrected.pdf.PDF

DRAFT

2022 Emergency Form

STATE OF NEW MEXICO

EMERGENCY DETERMINATION FORM

The emergency procurement method (NMSA 1978, Section 13-1-127) may only be used when the service, construction or item of tangible personal property procured:

1. is needed immediately to:

a. control a serious threat to public health, welfare, safety or property caused by a flood, fire, epidemic, riot, act of terrorism, equipment failure or similar event; or

b. plan or prepare for the response to a serious threat to public health, welfare, safety or property caused by a flood, fire, epidemic, riot, act of terrorism, equipment failure or similar event; and

2. cannot be acquired through normal procurement methods.

a. The agency entering into an emergency procurement should employ a competitive process to the extent practicable under circumstances.

The purchase or lease of heavy road equipment is not allowed under the emergency procurement statute.

The state purchasing agent or a central purchasing office that makes an emergency procurement shall outline its determination of the basis for the procurement and its selection of the contractor in writing and include the writing in the procurement file. (That writing can be made on this form.) Promptly thereafter:

the state purchasing agent shall post notice of the procurement on its website; or the central purchasing office shall post notice of the procurement on its website, if it maintains one, and shall transmit the notice to the state purchasing agent for posting on the state purchasing agent's website.

NOTE: the state purchasing agent or a central purchasing office that makes an emergency procurement to plan or prepare for the response to a serious threat to public health, welfare, safety or property caused by a flood, fire, epidemic, riot, act of terrorism, equipment failure or similar event shall account for the money spent in making the procurement and report on that accounting to the legislative finance committee and the department of finance and administration within sixty days after the end of the fiscal year in which the procurement was made.

I. Name of Agency: NM Department of Transportation

Agency Chief Procurement Officer: Christina Baca

Telephone Number: 505.469.8800

II. Name of Contractor: Stampede Ventures, Inc. (Contractor), an Alaska Corporation

Address of Contractor: 7411 Hancock Court NE, Albuquerque, NM 87109

Amount of prospective contract: $30,000,000.00 (Construction)

Term of prospective contract: 6 Months

III. Thoroughly list the services (scope of work), construction or items of tangible personal property being procured:

This will be a contract with Stampede Ventures, Inc. to perform the maintenance and construction which includes but is not limited to planning, design, right-of-way, and construction related to mitigation of flooding damage as well as implementation of flood prevention measures. This contract will be in the amount of $100,000,000.

IV. Provide an explanation for the justification of the procurement including a description of the emergency condition(s) requiring use of emergency procurement and the practicable competition utilized in compliance with NMSA 1978, Section 13-1-127.

The Calf Canyon/Hermits Peak Fire was the largest wildfire in New Mexico history burning 341,471 acres in the southern Sangre de Cristo Mountains in San Miguel County, Mora County, and Taos County during 2022 wildfire season. The fires caused a major Emergency due to the erosion caused by the continuous rain falls and flooding. The extent of damage caused by this disaster is significant. The effects of this fire are continuing. As a result, the burn scar area continues to see significant flooding damage. Because of this, the governor issued another emergency declaration for the area (EO 2024-094) on June 24, 2024 .

In order to provide immediate response as flooding damage occurs, the NMDOT is looking to contract with Stampede Ventures, Inc. Stampede Ventures has been providing the initial flood mitigation and has demonstrated expertise, staff, equipment, and material mobilized in the area.

V. Describe what measures are being taken to minimize the duration and effect of this particular emergency procurement (for example: is the emergency only in place until a competitive process can be completed, etc.).

Pursuing emergency procurement to mitigate/prevent flooding issues and for flood debris removal will help to minimize the overall impacts and reduce the amount of emergency procurement needed in the future. Due to the indefinite possibilities of situations that may be encountered, the ability to properly estimate an exact term or amount is impossible. The overall goal will be to attempt to mitigate all future needs for this emergency procurement, but this will be dependent on the future rainfall and flooding it may cause.

Expires 1.31.2025

30,000,000

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VI. Describe what measures the Agency will take in the future to prevent/mitigate use of an emergency procurement under similar circumstances.

Unfortunately, this type of circumstance is beyond the NMDOT's control. NMDOT currently attempts to anticipate possible scenarios when fires and flooding occurs to ensure all measures available are taken to assist with the prevention of possible damage.

Certified by: Date: _______________

Agency Chief Procurement Officer

Agency Approval by: Date: _______________

Cabinet Secretary/Governmental Entity Head or Designee

NMDOT CFO 25July2024

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EP FY23

Form No. A-555

Rev. 6-03 CONTRACT NO. EMERG03

VENDOR NO. 0000168801

New Mexico Department of Transportation

Contract

THIS CONTRACT, made this day of , 20 , between the NEW MEXICO

DEPARTMENT OF TRANSPORTATION (“Department”) and

STAMPEDE VENTURES, INC., an Alaska corporation____________________________________, and (State whether individual, partnership, corporation or joint venture, if incorporated, give State of incorporation) doing business at 7411 Hancock Court NE, Albuquerque, NM 87109, or its successors and assigns, hereinafter called “Contractor”.

In consideration of the payment or payments herein specified and agreed to by the Department, the Contractor agrees to furnish and deliver all the labor, materials and equipment necessary to do and perform the work required in the construction of FEMA-Reimbursable Tasks of Flood Debris Collection and Removal, Emergency Procurement EMERG03, located in Mora and San Miguel Counties, State of

New Mexico at the unit prices specified by the Contractor on its Unit Rate Price Form, which together with the Scope of Work, Terms and Conditions, and any referenced plans or specifications made a part of this contract, are incorporated herein by reference.

The Performance and Payment Bonds given by the Contractor in the sum of Thirty Million Dollars

($30,000,000) to secure the proper compliance with the terms, conditions and provisions of this Contract are attached hereto and made a part of this Contract.

The Contractor certifies that it has obtained and will maintain in force all insurance in the designated amount as set forth in the specifications in a form and amount satisfactory to the Department.

CONTRACTOR NEW MEXICO DEPARTMENT OF TRANSPORTATION

BY: _________________ BY:

Jacob Gum Ricky Serna, TITLE Senior Operations Manager Cabinet Secretary or Designee

ACKNOWLEDGMENT

STATE OF _________________ )

) SS

COUNTY OF )

The foregoing instrument was acknowledged before me this day of , 20 by , of Stampede Ventures, Inc., (Name of Officer) (Title of Officer) (Name of Contractor) an Alaska corporation, and doing business in Albuquerque, New Mexico on behalf of said Contractor.

(State whether individual, partnership, corporation or joint venture, if incorporated, give State of incorporation)

My Commission expires:

Notary Public

Form No. A-802

Rev. 6-03 CONTRACT NO. EMERG03

Contract Performance Bond

KNOW ALL MEN BY THESE PRESENTS:

That Stampede Ventures, Inc., an Alaska Corporation, with a business address of 7411 Hancock Court NE, Albuquerque, NM 87109 as Principal and of as Surety, are firmly bound and held unto the New Mexico Department of Transportation (“Department”) in the penal sum of Thirty Million Dollars ($30,000,000), good and lawful money of the United States, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, and firmly by these presents.

WHEREAS, the said Principal has entered into a written contract with said Department, on the day of , 2024 , for the construction of FEMA- Reimbursable Tasks of Flood Debris Collection and Removal, Emergency Procurement EMERG03, located in Mora and San Miguel Counties said work to be done according to the terms of said contract, including the Scope of Work, Terms and Conditions, Unit Rate Price Form and any referenced plans or specifications, which are incorporated therein and are a part thereof.

NOW THEREFORE, the condition of this obligation is such that if the said Principal shall faithfully perform, complete and fulfill all the undertakings, covenants, terms, conditions, and agreements, of said contract during the original term of said contract and any extension thereof, with or without notice to the Surety, and shall also faithfully perform, complete and fulfill all the undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said contract that may hereafter be made, notice of which modifications to the Surety being hereby waived, then the above obligation shall be void, otherwise to remain in full force and effect.

PROVIDED FURTHER, that upon the default of the Principal, the above bound Surety shall take charge of said work and complete the contract at its own expense, pursuant to the terms of said contract, receiving, however, any balance of funds due and owing Contractor in the hands of the Department under said contract.

PROVIDED FURTHER, the prevailing party in a suit on this bond shall recover as a part of its Judgment such reasonable attorney’s fees as may be fixed by District Court.

PROVIDED FURTHER, that if any legal action be filed upon this bond, venue shall lie within the County of Santa Fe, State of New Mexico. And the said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration of or addition to the terms of the contract or to the work to be performed there under or the Specifications accompanying the

Form No. A-802 CONTRACT NO. EMERG03

Rev. 6-03 same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alteration of or additions to the terms of the contract, or to the work or to the Specifications.

IN WITNESS WHEREOF, We have hereunto set our hands and seals at , County, New Mexico, this day of , A.D. 20

Principal:

Surety:

(SURETY’S CORPORATE SEAL)

Approved:

NEW MEXICO DEPARTMENT OF TRANSPORTATION

By:

Ricky Serna Cabinet Secretary or Designee

, 20

Surety’s Address:

Street or Box No.

City State Zip

Telephone No.

Form No. A-803

Rev. 6-03 CONTRACT NO. EMERG03

Contract Payment Bond

KNOW ALL MEN BY THESE PRESENTS:

That Stampede Ventures, Inc., incorporated in Alaska, and doing business at 7411 Hancock Court NE, Albuquerque, NM 87109 as Principal and of as Surety are firmly bound and held unto the New Mexico Department of Transportation (“Department”) in the penal sum of Thirty Million Dollars ($30,000,000), good and lawful money of the United States, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, and firmly by these presents.

WHEREAS, the said Principal has entered into a written contract with said Department, on the ___ day of , A.D. 20 , for the construction of FEMA-Reimbursable Tasks of Flood Debris Collection and Removal, Emergency Procurement EMERG03, located in Mora and San Miguel Counties. Said work to be done according to the terms of said contract, including the Scope of Work, Terms and Conditions, Unit Rate Price Form and any referenced plans or specifications, which are incorporated therein and are a part thereof.

NOW THEREFORE, the condition of this obligation is such that if the said Principal shall promptly pay all monies due to all persons supplying labor or materials to it and all monies due to its subcontractors in the prosecution and performance of the work provided for in said contract, then this obligation shall be void, otherwise to remain in full force and effect.

PROVIDED FURTHER, the prevailing party in a suit on this bond shall recover as a part of its Judgment such reasonable attorney’s fees as may be fixed by District Court.

PROVIDED FURTHER, that if any legal action be filed upon this bond, venue shall lie within the County of Santa Fe, State of New Mexico. And the said Surety for value received hereby stipulates and agrees that no change, extension of time, alteration of or addition to the terms of the contract or to the work performed there under or the Specifications accompanying the same shall in any wise affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alteration of or additions to the terms of the contract, or to the work or to the Specifications.

Form No. A-803 CONTRACT NO. EMERG03

IN WITNESS WHEREOF, We have hereunto set our hands and seals at County, New Mexico, this day of , A.D. 20 .

Principal:

Date: , 20

Form No. A-557 CONTRACT NO. EMERG03

Waiver for Partial Payments

The undersigned Surety on the bond of the Contractor on Project FEMA-Reimbursable Tasks of Flood

Debris Collection and Removal, Emergency Procurement EMERG03, hereby consents to the partial payment to the Contractor of amounts for materials and work performed, and acknowledges that such payment shall not preclude or stop the Department from showing the true character and quantity of the materials furnished or from recovering from the Contractor or its Surety such damages as the Department may sustain by reason of deficiency in quantity or quality of the material with respect to which partial payment was made.

IN WITNESS WHEREOF, We have hereunto set our hands and seals at

County, New Mexico, this day of , A.D. 20

Date: , 20

Form No. A-558 CONTRACT NO. EMERG03

Agent’s Affidavit (To be filled in by Agent)

STATE OF NEW MEXICO )

) ss

COUNTY OF )

being first duly sworn deposes and says:

That he is the duly appointed agent for and licensed in the State of New Mexico.

Deponent further states that a certain bond given to indemnify the New Mexico Department of

Transportation in connection with the construction of FEMA-Reimbursable Tasks of Flood

Debris Collection and Removal, Emergency Procurement EMERG03, located in Mora and San

Miguel counties dated this day of , 20 ,executed by Stampede Ventures Inc., Contractor, as principal and , as Surety, signed by this deponent; and deponent further states that said bond was written, signed and delivered by him and the premium on the same has or will be collected by him, and that the full commission thereon has been or will be retained by him.

Agent

Subscribed and sworn to before me a notary public in and for the County of , this day of , 20

Notary Public

My Commission expires:

Agents address:

City. State Zip

The enclosed forms are original New Mexico Department of Transportation contract documents.

• Please fill in these original forms and return them as requested.

• Please DO NOT enter contract execution dates.

• Please be sure to enter IN WITNESS WHEREOF dates.

And please DO NOT replace any forms with copies of your own.

Thank you.

Contract No: EMERG03

Vendor No: 0000168801

FEMA – Reimbursable Tasks of Flood Debris Collection and Removal Contract

Terms and Conditions

The following Terms and Conditions are incorporated into the FEMA – Reimbursable Tasks of

Flood Debris Collection and Removal Contract, emergency procurement contract no. EMERG03

(Contract).

1. Effective Date and Term.

A. The Contract is effective as of the date the last party executes the Contract.

B. The term of the Contract is not to exceed six months from the effective date, absent prior approval from the Department of Finance and Administration.

2. Compensation.

A. Total compensation during the term of Contract shall not exceed thirty million Dollars

($30,000,000), an amount that includes applicable New Mexico Gross Receipts Tax (GRT).

B. The Department will not compensate the Contractor for services or other deliverables provided prior to the full execution of the Contract, after the expiration of the Contract, or in excess of the maximum dollar amount of the contract, unless the maximum dollar amount is duly amended prior to providing the FEMA-reimbursable tasks.

3. Appropriations and Authorizations.

The Contract Scope of Work is to be federally funded through the FEMA Public Assistance

Program. The terms of the Contract are contingent upon sufficient appropriations and authorizations being made by the Governor, Legislature of New Mexico (Legislature), or the Congress of the United

States (Congress) if federal funds are involved for performance of the Contract, including FEMA Public

Assistance Program funds. If sufficient appropriations and authorizations are not made by the

Legislature or the Congress if federal funds are involved, the Contract shall terminate upon written notice being given by the Department to the Contractor. The Department is expressly not committed to expenditure of any funds until such time as they are programmed, budgeted, encumbered, and approved for expenditure by the Department. The Department’s decision as to whether its funds are available shall be accepted by the Contractor and shall be final.

4. Payment Provisions.

A. The Department shall compensate the Contractor for completed, satisfactory work, based on the rates identified in the Unit Rate Price Form, which is incorporated into the Contract. Payment will be made upon receipt of reimbursement requests verified and accepted by the project Monitor, which is separately contracted.

1. Payment requests shall be made monthly. Contractor shall submit the request to

Thompson for verification the work is accepted and eligible for FEMA reimbursement. Once the payment request is verified as acceptable, the Contractor will submit the verified payment request to the Department for payment processing.

2. The Contract number, Contractor’s name and contact information shall be shown on each payment request.

3. Each payment request shall include a description of the services, quantities, unit price and extended totals.

4. The Contractor shall show the GRT as a separate amount added to each request for payment.

B. The Department will make progress payments once each month. Progress payments may be made based upon completed and accepted quantities of work performed.

1. Thompson’s verification and certification of the request as eligible for FEMA reimbursement shall be shown on each request and is a prerequisite for any payment. Thompson must issue a written certification of complete or partial acceptance or rejection of work, confirming the work performed is eligible for FEMA reimbursement. In the absence of this verification, the work identified on the payment request will be deemed unacceptable and ineligible for FEMA reimbursement and shall not be paid by the Department.

2. Upon receipt of the request for payment and certification, the Department shall tender payment to the contractor within thirty (30) days after the date of certification. In the event payment is not issued within that time, late payment charges shall be paid on the unpaid balance due to the Contractor at the rate of one and a half percent (1 ½ %) per month.

C. The Contractor shall pay all lawful taxes imposed by the State or other political entities with jurisdiction over the project.

5. Federal Aid Provision

A federal agency is obligated to reimburse the Department for all or a portion of the cost of this project, as a result, the Contractor shall observe and be subject to federal law applicable to such reimbursement. In such situations, federal requirements supersede conflicting provisions of state and local laws, rules, or regulations. The project scope of work may be subject to inspection and oversight by the appropriate federal agency. Such inspection or oversight does not make the federal agency a party to this contract.

6. Laws to be Observed.

A. Before the start of project work, the Contractor shall be fully informed and make the necessary contacts with municipal, state and federal agencies with jurisdiction within the project boundaries concerning any obligations related to all applicable federal, state and local laws, ordinances and regulations, and all orders and decrees of bodies or tribunals having jurisdiction or authority. Such laws may include the New Mexico Water Quality Act and applicable permits and regulations in accordance with the federal Clean Water Act; Safety and Health Regulations for Construction (OSHA), 29

CFR Part 1926 and 30 CFR Part 15.32; New Mexico Workers’ Compensation laws; and the New Mexico

Public Work Minimum Wage Act.

B. The Contractor and any subcontractor or supplier on the project shall at all times observe and comply with all such laws, ordinances, regulations, orders and decrees.

C. The Contractor shall protect and indemnify the State and its officers, employees and agents against all claims or liability arising from or based on the violation of such laws, ordinances, regulations, orders, or decrees, by the Contractor, its officers, employees or agents, subcontractors or suppliers.

D. The Contractor shall procure all permits and licenses, pay charges, fees and appropriate taxes, ensure rights of entry are in place and notices given as may be necessary and incidental to the lawful performance of the Contract. Copies of such permits and licenses shall be furnished to the Department or Thompson upon request.

E. The Contractor shall be registered with the New Mexico Department of Workforce Solutions

(NMDWS) Labor Relations division before proceeding with the work. NMDWS registration can be obtained at: http://www.dws.state.nm.us. The Contractor shall provide this registration number to the

Department prior to commencing work.

7. Notice.

The New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities, or kickbacks in the procurement of this Contract. In addition, the New Mexico Procurement Code, NMSA

1978, Sections 13-1-28 through 13-1-199, as amended, imposes civil and criminal penalties for its violation.

8. Cooperation, Public Convenience and Safety

A. The Contract scope of work is anticipated to be performed over lands held in both public and private ownership, and for which specific permits or rights of entry agreement may be required.

Contractor shall coordinate and cooperate with state, local governmental, quasi-governmental, federal and private landowners ensuring the necessary permits or agreements are in place prior to performing the work.

B. The Contractor shall provide for the convenience and safety of the general public for reasonable access by local residents and businesses, and for the protection of persons and property.

9. Subcontracting.

A. The Contractor shall not subcontract any portion of the work to be performed under the

Contract without prior written approval of the Department and concurrence of the project Monitor.

B. The Contractor is solely responsible for ensuring the performance of work by its subcontractors, including ensuring that its subcontractors are duly licensed to perform assigned work on the project, and registered with the Department of Workforce Solutions and the New Mexico Taxation and Revenue Department.

C. A subcontractor listing may be required to comply with FEMA obligations. If so, the

Contractor shall supply the subcontractor listing and any other verifications to the project Monitor prior to allowing the subcontractor perform work on the project. The Contractor shall update its subcontractor listing as necessary while the work progresses.

http://www.dws.state.nm.us/

10. Contractor Records.

A. The Contractor, its subcontractors and suppliers shall keep and maintain all documents and project records in a useable format, capable of being made available for review by the Department, Thompson, or other governmental entities for review, audit, inspection and copying.

B. The records shall be maintained for five (5) years after project completion, or the time specified for FEMA-reimbursement programs, whichever period is longer.

11. No Third-party Liability.

The Department and the Contractor specifically agree that the provisions of the Contract do not make anyone, including subcontractors or materials suppliers, a third-party beneficiary or authorize anyone not a party to the Contract to maintain an action for damages under this Contract.

12. Insurance.

A. The Contractor shall procure and maintain at the Contractor’s expense insurance of the kinds and in amounts identified below.

B. This insurance shall be provided by insurance companies authorized to do business in the

State and shall cover all operations under the Contract scope of work, whether performed by the

Contractor, its agents, employees or subcontractors. All insurance shall remain in full force and effect for the entire period of work including final acceptance and removal of equipment and personnel from the project site.

C. Liability Insurance:

1. The Contractor shall obtain General Liability (Bodily Injury Liability and Property Damage Liability) insurance coverage applicable in full to the project in the following minimum amounts:

a. Personal and Bodily Injury Liability: $1,000,000.00 each person; $2,000,000.00 each occurrence (annual aggregate); and,

b. Property Damage Liability: $2,000,000.00 each occurrence; (annual aggregate).

2. The insurance coverage shall be documented on a Comprehensive General Liability form or Commercial General Liability form, which must include the following:

a. Coverage for liability arising out of the operation of independent contractors;

b. Completed Operations Coverage; and,

c. Attachment of the Broad Form Comprehensive General Liability Endorsement.

3. If the Work includes the use of explosives, the Contractor’s insurance must include coverage for injury to or destruction of property arising out of blasting or explosion.

4. If the Contract includes Work next to an existing building or structure, the

Contractor’s insurance shall include coverage for injury to or destruction of property arising from the collapse of or structural injury to buildings or structures due to the following:

a. Excavation, including borrowing, filling, or backfilling in connection with the work;

b. Tunneling and cofferdam or caisson work; and,

c. Moving, shoring, underpinning, razing, or demolition of buildings or

Structures, or removal or rebuilding of structural supports.

5. Coverage must include injury to or destruction of property arising out of damage to wires, conduits, pipes, mains, sewers or other similar property or any apparatus in connection therewith below the surface of the ground, if such injury or destruction is caused by or occurs during the use of mechanical Equipment for the purpose of excavating, digging, or drilling.

D. Automobile Liability Insurance. The Contractor shall provide or ensure that all vehicles used in performance of the Contract have liability insurance. The Contractor is not responsible for liability insurance for the Department or its agents. The Contractor shall provide limits of liability for automobile liability insurance in the following amounts:

1. Personal and Bodily Injury Liability: $1,000,000.00 each person; $2,000,000.00 each occurrence; (annual aggregate); and,

2. Property Damage Liability: $2,000,000.00 each occurrence; (annual aggregate).

C. Worker’s Compensation Insurance. The Contractor shall carry worker’s compensation insurance and otherwise fully comply with the New Mexico Worker’s Compensation Act (NMSA 1978, § 52-1-1) and the New Mexico Occupational Disease Disablement Law (NMSA 1978, § 52-3-1).

D. Umbrella Coverage. The insurance limits cited in this section are minimum limits. The

Department does not intend these contract provisions to define what constitutes adequate insurance coverage for the individual Contractor. The Department will recognize excess coverage (Umbrella) as meeting the insurance requirements for “Liability Insurance,” if the limits of the Umbrella coverage meet the individual requirements of this Section.

E. Department as Additional Insured. The Contactor shall name the Department as an additional named insured on the comprehensive general liability form or commercial general liability form furnished by the Contractor in accordance Contract section, “Liability Insurance.” The certificate of insurance shall state that the coverage provided under the policy is primary over any other valid and collectible insurance. The additional insured endorsement shall conform to the most current version of the Insurance Services Office’s CG 2010 or equivalent, Additional Insured Endorsement Form. The

Contractor shall provide to the Department a copy of the Contractor’s standard commercial general liability policy showing the Additional Insured Endorsement before the Department issues a Notice to

Proceed.

F. Certificate of Insurance. The Contractor shall provide evidence of conforming insurance coverage with a certificate of insurance to be made part of the Contract. The certificate shall indicate compliance with these insurance specifications and shall certify that the coverage shall not be changed, canceled, or allowed to lapse without giving the Department 30 days written notice. The Contractor shall provide a certificate of insurance to the Department on renewal of a policy or policies as necessary during the term of the Contract. The Department shall not issue a Notice to Proceed until the Contractor meets these requirements.

13. Public Works Minimum Wage Act.

A. The Contract scope of work is a Public Works project subject to the provisions of the Public

Works Minimum Wage Act, NMSA 1978, Sections 13-4-11 through 13-4-17. Minimum Wage Rates as determined by NMDWS shall be in effect and utilized by the Contractor during the Contract term.

B. Because the project is funded through the FEMA Public Assistance Program, federal Davis-

Bacon Act minimum wage rate decisions do not apply to the project work. The Department will obtain a

NMWSD Wage Rate Decision number for the project from the NMDWS Public Works Section prior to the

Contractor’s commencement of work.

C. If the Contractor or a subcontractor willfully pays employees covered by the Public Works

Minimum Wage Act lower wages than required, the Contractor or subcontractor may lose the right to proceed with the work.

14. Contractor Liability.

A. Contractor shall defend, indemnify and hold harmless the Department, acting through its agents, representatives and employees, from and against liability, claims, damages, losses or expenses

(including but not limited to attorney’s fees, court costs and the cost of appellate proceedings) arising out or resulting from the negligence, act, omission or default of the Contractor, it agents, representatives or employees; provided that such indemnification shall not extend to liability, claims, damages, losses or expenses, including attorney’s fees arising out of: (1) The preparation or approval of maps, drawings, opinions, reports, surveys, change orders, design or specifications by the Department or the agents or employees of the Department: or (2) The giving of or failure to give directions or instructions by the Department, where such giving of or failure to give directions or instructions by the

Department is the primary cause of bodily injury to persons or damages to property.

B. The Contractor agrees, at its own expense, and upon written request by the Department, to defend any suit, action or demand brought against the Department on any claim or demand covered herein.

1. The Contractor shall establish a local contact number (with area code) for filing claims, and clearly post the number. In addition, post the name of the Contractor and telephone number at each approach and departure to the project limits. The Contractor shall ensure that equipment and vehicles (Contractor, subcontractor, or privately owned) working on the project have clean, unobstructed license plates, and shall mark vehicles legibly with the appropriate company name.

2. By the date work commences, the Contractor shall assign an individual readily available during normal working hours, to respond to claims from the public for losses alleged to have occurred within the project, whether arising from Contractor or subcontractor action or inaction. The

Contractor shall provide claimants with a written outline of the Contractor’s claims procedure, along with a written copy of the Contractor’s name, address, and telephone number together with the name and title of the individual assigned to handle claims from the public and provide a copy of the same to the Department and Thompson.

3. The Contractor shall maintain a status report of claims filed, including the name, address, and telephone number of the claimant, the nature of the claim, pertinent findings regarding the claim, and a statement concerning resolution of the claim. The Contractor shall provide the status report to the Department upon request.

15. Status of Contractor.

The Contractor and its agents and employees are independent contractors performing FEMA-reimbursable tasks of flood debris collection and removal for the Department and are not employees of the Department.

16. Contract Modifications.

The Contract shall not be modified, limited or changed except by a written change order or similar instrument, executed by the Department and the Contractor.

17. Assignment.

A. The Contractor shall not assign, transfer or delegate any contractual obligation or duty without the prior written consent of the Department and surety which issued the project bonds.

B. The Contractor agrees that any and all claims for overcharge resulting from antitrust violations as to goods, services and materials purchased in connection with this Contract are to be assigned to the State, but only to the extent that such overcharges are passed on to the Department.

1. The Contractor retains all right to any such antitrust claims for overcharges that are not passed on to the State, including the right to any related treble damages.

2. The Contractor shall ensure its subcontracts, at any tier, include this assignment.

18. Default.

A. The Department may declare the Contractor in default of the Contract as a result of a material breach of contract and make a demand for the surety to complete the work at its own expense.

B. In the event the Department becomes award of apparent default by the Contractor, the

Department will provide written notice to the Contractor and the Contractor’s surety specifying the conditions interpreted as a material breach of Contract and the corrective measures to be taken by the

Contractor. If the Contractor or its surety do not proceed with corrective measures in 10 calendar days of the notice, the Department has the authority under the Contract to declare the Contractor in default and to demand compliance by the Surety of the obligations under the project performance bond.

19. Termination

A. The Department may terminate, by written notice, all or part of the Contract after determining the Contractor is prevented from proceeding or completing the work as originally contracted for reasons beyond the control of the Contractor, or if the Department determines that termination is in the best interest of the public.

B. By such termination notice, the Contractor shall immediately suspend any further work unless otherwise directed by the Department.

C. The Department will pay for the actual items of work completed and accepted at the rate established by the project unit prices; for items of work started but not completed at a negotiated and mutually agreed amount, not to exceed the unit price; and for invoices to restock or for material on-hand ordered before the date of the notice and termination order is issued.

20. Non-Debarment Certification.

A. By executing this Contract, the Contractor certifies that neither it nor its principles are presently suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this project by any federal department or agency.

B. The Contractor further agrees to comply with the following:

1. The Contractor shall verify through the SAM.gov website at that its Subcontractor(s), at any tier(s), is not presently suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participating in this Project. The result of this verification shall be provided to the

Department and the project Monitor with the subcontract list; and

2. If circumstances change to render this certification inaccurate then the Contractor shall provide the changed circumstances immediately in writing to the Department and the project

Monitor.

C. If the Contractor knowingly makes a false certification the NMDOT may take any available actions under the Contract.

21. New Mexico Employees Health Coverage

A. If the Contractor has, or grows to, six (6) or more employees who work, or who are expected to work, an average of at least 20 hours per week over a six (6) month period during the term of the contract, Contractor certifies, by signing this agreement, to have in place, and agree to maintain for the term of the contract, health insurance for those employees and offer that health insurance to those employees if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed $250,000 dollars.

B. Contractor agrees to maintain a record of the number of employees who have (a) accepted health insurance; (b) declined health insurance due to other health insurance coverage already in place;

or (c) declined health insurance for other reasons. These records are subject to review and audit by a representative of the state.

C. Contractor agrees to advise all employees of the availability of State publicly financed health care coverage programs.

22. Conflict of Interest.

The Contractor warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Agreement. The Contractor shall comply with any applicable provisions of the New

Mexico Governmental Conduct Act and the New Mexico Financial Disclosures Act.

23. Anti-Lobbying Certification.

A. By executing this Contract, the Contractor certifies no federal funds have been or will be used for certain lobbying activities prohibited by the Byrd Anti-Lobbying amendment to 31 USC 1352.

B. Contractor shall complete and return the Disclosure of Lobbying Activities with its executed

Contract and required documents. At the end of each calendar quarter in which there occurs any event that materially affects the accuracy of the Disclosure, Contractor shall immediately submit an updated form to the Department and Thompson.

C. Contractor also certifies that it will ensure these requirements are included in the terms and conditions of its subcontracts at any tier with a value greater than $100,000.00.

24. Choice of Law; Venue

The laws of the State govern this Contract. Venue shall lie in Santa Fe County.

25. Severability.

If any portion of this Contract is determined to be void, unconstitutional or otherwise unenforceable, the remainder of the agreement shall remain in full force and effect.

26. Merger.

This Agreement incorporates all the agreements, covenants, and understandings between the parties hereto concerning the subject matter hereof, and all such covenants, agreements, and understandings have been merged into this written Agreement. No prior agreements or understandings, verbal or otherwise, of the parties or their agents shall become valid or enforceable unless embodied in this Agreement.

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ATTACHMENT A

Contract No.: EMERG03 Vendor No.: 0000168801

Scope of Work Definitions

Arborist: Certified arborist is hired by the Monitoring Firm and is responsible for determining whether a tree could die within the next 5 years because of damage sustained during the 2022 wildfire or subsequent flood.

Contractor: Stampede Ventures, Inc.

DMS: Debris Management Site is a temporary debris staging and reduction site used during the course of the project to lessen haul distances and increase production.

Driveway: an access road to a structure starting at the Right-of-Way (ROW) and terminating at 50 feet from eligible structure.

Incidental Trees: Trees that do not meet FEMA eligibility requirements but are impeding other eligible hazardous trees. For example, a 5” fire-damaged tree is impeding the felling crew from safely accessing an eligible 19” fire-damaged tree. Monitor may authorize the felling crew to remove the 5” tree to safely access and remove the 19” tree.

Monitor or Monitoring Firm: NMDOT’s contracted third-party debris monitoring firm to assist with eligibility determinations, monitor work conducted under this Contract, provide documentation support, and reconcile project data for Contractor payment recommendations to NMDOT.

NMDOT: New Mexico Department of Transportation

Non-Working Day: A day during which no work is performed because of inclement weather, holiday, or a day designated as a non-working day by NMDOT (every fifth Saturday). Sundays are not considered non-working days.

ROE Tree: An eligible hazardous tree requiring removal by Contractor which is located on private property with associated Right-of-Entry (ROE) document.

ROW Tree: An eligible hazardous tree requiring removal by Contractor which is located on public property or along public right-of-way.

Standard Drawings: The NMDOT 2019 Standard Drawings for Highway and Bridge Construction UPDATE (Effective August 2021 Letting), available at: https://www.dot.nm.gov/infrastructure/plans-specifications-estimates-pse-bureau/standards/ last visited, 07/16/2024.

Steep Slope Trees: Eligible hazardous trees on slopes that are 26.75° (50%) or greater on a continuous basis of at least one (1) tree height.

Removal of Eligible Hazardous Trees The Contractor shall remove hazardous trees (leaners) 6” or greater in diameter (measured 4.5 feet above ground) from public property, public right-of-way (ROW trees), and private property with associated Right-of- Entry document (ROE trees), or as identified by the NMDOT, Monitor or Arborist as eligible for FEMA reimbursement. Disaster damaged trees leaning more than 30 degrees from vertical, trees with more than 50% of the canopy damaged, split trunk exposing the heartwood, or designated as mortality within 5 years by a certified Arborist shall be considered hazardous trees and eligible for removal. Hazardous trees meeting this requirement are eligible for removal provided that the individual hazardous tree is within 2 tree heights of the ROW or other public or private infrastructure. Hazardous trees shall be removed, topped, limbed, bucked and https://www.dot.nm.gov/infrastructure/plans-specifications-estimates-pse-bureau/standards/ https://www.dot.nm.gov/infrastructure/plans-specifications-estimates-pse-bureau/standards/ placed on public property or ROW for either: chipping and broadcast back onto disturbed areas, hauled to DMS, or, if ROE tree, left for property owner at the property owner’s discretion. The NMDOT, Monitor or Arborist must identify hazardous trees prior to removal to be eligible for payment. Payment for this item shall be on a per tree basis under Line-Item No. 1. Payment for chipping onsite, hauling, reduction and haul out of the hazardous trees collected and placed on ROW will be handled under separate pay items.

Incidental Trees The NMDOT or Monitor may authorize the Contractor to remove an incidental tree to safely gain access and remove an eligible hazardous tree. Payment for this item shall be on a per tree basis under Line-Item No. 1.

Payment for removal, chipping onsite, hauling, reduction and haul out of the hazardous trees collected and placed on ROW through the issuance of a hazardous tree tickets and follow the Price Schedule.

Flush Cutting Hazardous Trees Contractor shall flush cut hazardous and incidental trees to the greatest extent possible, generally between 6-inches and 1-foot. However, certain circumstances may result in a hazardous or incidental tree not being completely flush cut. For example, a hazardous tree may be intertwined with a private fence, but still deemed eligible by the Arborist. Contractor may remove the hazardous tree 1-foot above the private fence. Similarly, a feller may have difficulty safely flush cutting a tree on a steep slope. Contractor may remove the hazardous tree and leave a 1.5-foot to a 2-foot stump. Contractor may encounter other situations that require a larger than expect stump left after flush cutting. Contractor shall work with NMDOT, Monitor and Arborist to determine each situation and develop a standard acceptable to all stakeholders.

Removal of Eligible Steep Slope Trees Steep slopes are defined as a slope that is 26.75° (50%) or greater on a continuous basis of at least one (1) tree height. If a slope is 26.75° or greater, but flattens out before one (1) tree height, the trees above/below the slope do not qualify as steep slope trees. All hazardous trees on the up slope along public property, public ROW, and private property that qualify require removal. However, only a portion of the hazardous trees on the down slope along public property, public ROW and private property pose a safety threat to the public and infrastructure. (See the diagram that follows on the next page.)

Down Slope Hazardous Trees To minimize the steep slope exposure risk to personnel, Contractor shall only remove downhill trees that pose a direct threat to the road or other public infrastructure. A direct threat is defined as one (1) tree height from the edge of ROW. Hazardous trees on the down slope that are greater than 26.75° slope or pose other serious safety risks to personnel should only be removed when the hazardous tree can directly impact the road or other public infrastructure. If a hazardous tree is questionable to whether it meets this standard and at the direction of NMDOT, Monitor or Arborist, Contractor shall remove the hazard tree.

Up Slope Hazardous Trees Contractor shall remove up slope hazard trees that pose a direct threat to the road or other public or private infrastructure and lop-and-scatter the residual slash as necessary to reduce the loosening of rocks and boulders from yarding operations; loosen rocks and boulders will present a future hazard to the public. A direct threat is defined as two (2) tree heights from the edge of ROW as trees on the up slope can fall and kick or fall and roll impacting ROW. Following decking of logs along the ROW, Contractor shall chip and broadcast residual vegetative debris back onto the up slope.

Steep Slope Operations Plan Prior to beginning work on any steep slope, Contractor is required to prepare and submit for review a Steep Slope Operations Plan. Once approved by NMDOT, Contractor may proceed with work in accordance with this Scope of Work.

Chipping of Eligible Hazardous Trees Staged at ROW Where possible, Contractor shall chip ROW and ROE hazardous trees while along the public ROW and broadcast resulting chips back onto disturbed areas for erosion control. Chip size may vary. Chips broadcasted back onto disturbed properties may not exceed 3-inches thick in any one location. NMDOT, Monitor or Arborist must identify hazardous trees prior to removal to be eligible for payment. Payment for this item shall be on a per tree basis as shown in the Unit Rate Price Form, Attachment B.

Chipping Tops and Branches of Eligible Hazardous Trees (Firewood Program) Contractor shall chip the tops, branches and some bottoms of ROW and ROE hazardous trees. When removing tops of ROW and ROE hazardous trees, Contractor shall cut the top of the tree where the diameter of the top’s base is a minimum 6-inches. When removing trunk bottoms (or butt) of ROW and ROE hazardous trees, Contractor shall cut the bottom trunk of the tree where the diameter of the bottom’s base is greater than 20-inches. Where possible, Contractor shall chip ROW and ROE hazardous trees and broadcast resulting chips back onto disturbed areas for erosion control. NMDOT, Monitor or Arborist must identify hazardous trees prior to removal to be eligible for payment. Payment for this item shall be on a per tree basis under Line-Item Nos. 2A-B.

Payment for hauling residual logs, staging logs, and splitting logs into firewood are handled under separate pay items.

Mastication of Wooded Areas for Acequia Access:

Contractor shall masticate wooded areas into chips and/or grindings 12-15 feet wide on either one side or both sides of an acequia to access, clean-out, remove and/or place sediment material. Contractor shall determine the most appropriate and efficient means to mechanically masticate wooded areas safely without negligently damaging existing infrastructure and to minimize ground disturbance. All Work identified for Contractor performance under this line items shall be identified and approved by NMDOT prior to commencement.

Contractor shall develop and educate all Contractor, Monitor and Government personnel on mastication safety practices, including work zone delineation and safe distance protocols. Payment under this pay item shall be based on a per linear foot per side of an acequia. Payment for clean-out, removal, and haul or place sediment material from acequias will be handled under separate pay items.

ROW Vegetative Debris Collection (Collect & Haul to DMS) As identified by and directed by NMDOT or Monitor, the Contractor shall load vegetative debris from public…