A14_2024-05_Model_Contract_Exh_D_-_T_Cs.docx

MODEL CONTRACT IFB Number 2024-05 Page 1 of 36 State Lands Commission | [Contractor Name] Platform Holly Caretaker Services

EXHIBIT D

SPECIAL TERMS AND CONDITIONS

Agreement C2018009 Page 2 of 3 State Lands Commission / Ultimate Staffing

EXHIBIT E (part 2)

MODEL CONTRACT Bid Log 2024-05 Page 2 of 37 State Lands Commission | [Contractor Name] Platform Holly Caretaker Services

EXHIBIT D

SPECIAL TERMS AND CONDITIONS

1) Termination Clause - The State reserves the right to terminate this agreement without cause upon 30 days written notice. The Contractor shall be reimbursed for all reasonable expenses incurred up to the date of termination. Contractor may submit a written request to terminate this agreement only if the State should substantially fail to perform its responsibilities as provided herein. Comment by Shrestha, Dev@SLC: Bidder to update the header of this Model Contract Exhibit D with the Bidder's business name.

2) Potential Subcontractors - Nothing contained in this Agreement or otherwise, shall create any contractual relationship between the State and any subcontractors, and no subcontract shall relieve the Contractor of his responsibilities and obligations hereunder. The Contractor agrees to be as fully responsible to the State for the acts and omissions of its subcontractors and of persons either directly or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the Contractor. The Contractor's obligation to pay its subcontractors is an independent obligation from the State's obligation to make payments to the Contractor. As a result, the State shall have no obligation to pay or to enforce the payment of any money to any subcontractor.

3) Liabilities - This project is located in a designated State Ecological Reserve and Marine Protected Area and is also located within an active, natural oil seep field. The Contractor will remain in compliance with all relevant environmental laws and regulations and will cooperate with all federal, state, and local government agencies with jurisdiction during compliance inspections. The Contractor will immediately notify Commission staff of inspection notices or Notices of Violation received from other agencies, and will furnish any and all compliance documents to Commission staff upon request.

Except to the extent caused by the sole negligence and willful misconduct of the State, the Contractor shall indemnify, hold harmless, and, at the option of the State, defend the State, its officers, agents, and employees from any and all damages, claims, fines, or fees resulting from, arising out of, or related to the Contractor’s actions under or in connection with this contract. The Contractor shall reimburse the State for all reasonable attorneys’ fees and costs incurred as a result of the Contractor’s acts, omissions, or violation of any laws with respect to the work to be performed by the Contractor under this contract.

4) Public Works - Rules/Regulations - The Contractor shall observe and comply with all federal, state, regional, city, and county laws, rules, or regulations affecting the work, including but not limited to all environmental health, worker safety, and labor laws, rules, or regulations. The Contractor shall be solely responsible for the payment of any civil fines or penalties that may be assessed by any Federal, State, or local regulatory agency as a result of the Contractor's or any subcontractor's violation of any applicable Federal, State, or local environmental health, worker safety, or labor law or regulation, including but not limited to any civil fines or penalties assessed upon the Commission. Any work done that does not comply with any laws, rules, or regulations will be remedied at the Contractor's expense.

5) Insurance. Contractor shall procure and maintain during the entire period of performance under this contract minimum insurance coverage as defined in the Invitation for Bid including

a) Commercial liability insurance

b) Worker’s compensation as required by Federal and State workers’ compensation and occupational disease laws

c) Vehicle liability insurance coverage as required by California law

d) Any other insurance as required by the State of California law

6) Insurance Requirements – The Contractor agrees that all insurance coverages herein provided shall be in effect at all times during the terms of this contract. In the event, the Contractor fails to maintain said insurance coverages during the terms of this contract, the State may, in addition to any other remedies it may have, terminate this contract upon the occurrence of such event.

a) Prior to commencing any work, Contractor shall furnish to the State certifications of insurance in accordance with the requirements of this section.

i) Additionally, the Contractor shall procure and maintain during the entire period of performance any other insurance required by the laws of the State of California.

b) Each policy of insurance required by this provision shall: (a) be in a form, and written by an insurer, reasonably acceptable to California State Lands Commission; (b) be maintained at Contractor's sole expense; and (c) require at least thirty (30) days written notice to State prior to any cancellation, nonrenewal, or material modification of insurance coverage. Insurance companies issuing such policies shall have a rating classification of "A-" or better and financial size category ratings of "VII" or better according to the latest edition of the A.M. Best Key Rating Guide. All Insurance companies issuing such policies shall be licensed to do business in the State of California.

c) Required Certificates:

i) Evidence of the required coverage is to be an original certificate of liability insurance, with “the State of California acting by and through the California State Lands Commission” named as the certificate holder.

(1) Commercial Liability Insurance - Commercial general liability insurance is at least as broad as the most commonly available ISO policy form CG 0001 covering bodily injury, property damage, and personal injury with limits not less than $2,000,000 per occurrence and $4,000,000 general aggregate. Said policy shall apply separately to each insured against whom any claim is made, or suit is brought, subject to the Contractor’s limits of liability. The policy shall include the State of California, its officers, agents, and employees as additional insured. Additional insured endorsement is required for the commercial general liability policy.

(2) Vehicle Liability Insurance -- Contractor shall maintain motor vehicle liability with limits of not less than $1,000,000 per accident. Such insurance shall cover liability arising out of a motor vehicle including those owned or hired. The policy shall include the State of California, its officers, agents, and employees as additional insured.

(3) Workers’ Compensation Insurance -- Contractor shall maintain statutory workers’ compensation, and employer's liability coverage in the amount of $1,000,000/employee/disease/each accident, for all its employees who will be engaged in the performance of work on the Property, including special extensions where applicable. Said policy shall include a waiver of subrogation endorsement in favor of the State of California. A waiver of subrogation endorsement is required for the workers’ compensation policy.

7) Air and Water Pollution Control - In accordance with Public Contract Code Section 10231 and Government Code Section 11017, Contractor and Subcontractor shall comply with Air and Water Pollution Control rules, regulations, ordinances, and statutes that apply to work performed pursuant to the Contract.

8) Licenses and Permits - The Contractor shall be an individual or firm licensed to do business in California and shall obtain at his/her expense all license(s) and permit(s) required by law for accomplishing any work required in connection with this contract.

a) In the event that any license(s) and/or permit(s) expire at any time during the term of this contract; Contractor agrees to provide the Commission a copy of the renewed license(s) and/or permit(s) within 30 days following the expiration date. In the event the Contractor fails to keep in effect at all times all required license(s) and permit(s), the State may, in addition to any other remedies it may have, terminate this contract upon the occurrence of such event.

9) Labor Code Certifications

a) The Contractor shall adhere to the provisions of Section 3700 of the Labor Code, which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that Code.

b) It is hereby mutually agreed that the contractor shall forfeit to the State $50.00 for each calendar day, or portion thereof, for each worker paid by him or her, or subcontractor under him or her, less than the prevailing wage so stipulated. In addition, the contractor further agrees to pay to each worker the difference between the actual amount paid for each calendar day, or portion thereof, and the stipulated prevailing wage rate for the same. This provision shall not apply to properly registered apprentices.

c) It is further agreed that the maximum hours a worker is to be employed is limited to eight hours a day and 40 hours a week and the contractor shall forfeit, as a penalty to the State, $25.00 for each worker employed in the execution of the contract for each calendar day during which a worker is required or permitted to labor more than eight hours in any calendar day or more than 40 hours in any calendar week, in violation of Labor Code Sections 1810-1815, inclusive.

d) Properly registered apprentices may be employed in the performance of the work. Every such apprentice shall be paid the standard wage paid to apprentices under the regulations of the craft or trade at which he or she is employed and shall be employed only at the work of the craft or trade to which he or she is registered. The Contractor and each subcontractor must comply with the requirements of Labor Code Section 1777.5 and any related laws and regulations regarding the employment of registered apprentices.

e) Each Contractor and subcontractor shall comply with the Labor Code Section 1776 regarding record keeping.

10) Employment of Undocumented Aliens - No state agency or department, as defined in Public Contract Code Section 10335.7, that is subject to this code, shall award a public contract to a bidder or contractor, nor shall a bidder or contractor be eligible to bid or receive a public works contract, who has, in the preceding five years, been convicted of violating a state or federal law regarding the employment of undocumented aliens. See Public Contract Code Section 6101.

11) National Labor Relations Certification - By signing this Agreement, the Contractor swears under penalty of perjury that no more than one final un-appealable finding of contempt of court by a federal court has been issued against the Contractor within the immediately preceding two-year period because of the contractor’s failure to comply with an order of a federal court which orders the contractor to comply with an order of the National Labor Relations Board.

12) Antitrust Claims - Contractor offers and agrees and will require all of his other subcontractors and suppliers to agree to assign to the awarding body all rights, title, and interest in and to all causes of action they may have under Section 4 of the Clayton Act (15 USC Section 15) or under the Cartwright Act (Chapter 2 [commencing with section 16700] of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or subcontract. The assignment made by the contractor and all additional assignments made by the subcontractors and suppliers shall be deemed to have been made and will become effective at the time the awarding body tenders final payment to the contractor without further acknowledgment or the necessity of tendering to the awarding body any written assignments.

a) If an awarding body receives, either through judgment or settlement, monetary recovery for a cause of action assigned under Government Code section 4550-4554, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, on demand, recover from the public body any portion of the recovery, including treble damages, and attributable overcharges that were paid by the assignor but were not paid by the public body as a part of the bid price, less the expenses incurred in obtaining that portion of the recovery. On-demand in writing by the assignor, the assignee shall, within one year from such demand, reassign the cause of action assigned under Government Code sections 4550-4554 if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action.

13) Audit Language - The Contractor agrees that the awarding agency or the Bureau of State Audits or its designated representative shall have an absolute right of access to all of the Contractor’s records, files, documents, accounts, and financial affairs as deemed necessary for the purpose of conducting an audit to determine compliance with the terms and conditions of this contract. The contractor shall provide the auditor(s) with any relevant information requested without unnecessary delay and, on reasonable notice, permit access to its premises during normal business hours for the purpose of interviewing staff and inspecting and copying such books, records, accounts, and any other material as warranted to conduct the audit. The contractor further agrees to maintain such records for a period of three years after final payment is made on this contract or three years after the resolution of all issues that may arise as a result of any litigation, claim negotiation, or audit related to the contract, whichever is later. The state agrees to treat as confidential any proprietary information obtained as a part of any such audit.

14) Disabled Veteran Business Enterprise (DVBE) – Contractor is advised that the commitment made to achieve disabled veteran business enterprise (DVBE) participation if awarded the contract, Contractor must within 60 days of receiving final payment under this agreement (or within such other time period as may be specified elsewhere in this agreement) certify in a report to the awarding department: (1) the total amount the prime contractor received under the contract; (2) the name and address of the DVBE(s) that participated in the performance of the contract; (3) the amount each DVBE received from the prime contractor; (4) that all payments under the contract have been made to the DVBE(s); and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Military & Veterans Code (M&VC) section 999.5(d)).

a) Contractor understands and agrees that should the award of this contract be based in part on their commitment to using the Disabled Veteran Business Enterprise (DVBE) subcontractor(s) identified in their proposal or offer, per Military and Veterans Code 999.5 (e), a DVBE subcontractor may only be replaced by another DVBE subcontractor and must be approved by the Department of General Services (DGS). Changes to the scope of work that impact the DVBE subcontractor(s) identified in the proposal or offer and approved DVBE substitutions will be documented by contract amendment.

b) Failure of Contractor to seek substitution and adhere to the DVBE participation level identified in the proposal or offer may be cause for contract termination, recovery of damages under rights and remedies due to the State, and penalties as outlined in M&VC section 999.9; Public Contract Code (PCC) section 10115.10, or PCC section 4110 (applies to public works only).

c) For information general regarding DVBE contracting assistance, email osdshelp@dgs.ca.gov or call (916) 375-4940.

15) Contract Performance – All performance under the Agreement shall be completed on or before the termination date of the Agreement.

16) Inspection, Acceptance, and Rejection - Unless otherwise specified in the Statement of Work:

a) Contractor and its subcontractors will provide and maintain a quality assurance system acceptable to the State covering Deliverables and services under this Contract and will tender to the State only those Deliverables that have been inspected and found to conform to this Contract's requirements. Contractor will keep records evidencing inspections and their result and will make these records available to the State during Contract performance and for three years after final payment. Contractor shall permit the State to review procedures, practices, processes, and related documents to determine the acceptability of Contractor's quality assurance System or other similar business practices related to performance of the Contract.

b) All Deliverables may be subject to inspection and testing by the State or its authorized representatives.

c) Contractor and its subcontractors shall provide all reasonable facilities for the safety and convenience of inspectors at no additional cost to the State. Contractor shall furnish to inspectors with all information and data as may be reasonably required to perform their inspection.

d) All Deliverables may be subject to final inspection, test, and acceptance by the State at the destination, notwithstanding any payment or inspection at the source.

e) The State shall give written notice of rejection of Deliverables delivered or services performed hereunder within a reasonable time after receipt of such Deliverables or performance of such services. Such notice of rejection will state the respects in which the Deliverables do not substantially conform to their specifications. If the State does not provide such notice of rejection within thirty (30) days of delivery, such Deliverables and services will be deemed to have been accepted. Acceptance by the State will be final and irreversible, except as it relates to latent defects, fraud, and gross mistakes amounting to fraud. Acceptance shall not be construed to waive any warranty rights that the State might have at law or by express reservation in this Contract with respect to any non-conformity.

17) Multi-Factor Authentication - Contractor understands and agrees that in the event that Contractor requires access to the Commission’s digital resources, Contractor may be required to authenticate identity using multi-factor authentication.

18) Confidentiality and Publicity - The Contractor will retain all information provided by the Commission and stakeholders in the strictest confidence. The Contractor will neither use nor disclose information provided by the Commission to anyone other than employees requiring the information to perform services under the agreement without the prior written consent of the Commission or, in the event of information submitted to the Commission in confidence by staff or stakeholder, the prior written consent of the submitting entity. The Commission retains the right to enjoin any unauthorized disclosure in an appropriate court of law. Nothing in this provision or this Agreement shall limit the Commission’s ability to release information to a third party or the public.

19) Release of Information by Contractor – No reports, information, discoveries, or data assembled, developed, or obtained by the Contractor pursuant to this Agreement shall be released, made available to any person, or used in any manner by the Contractor in other activities without the prior written approval of the State.

20) Intellectual Property Rights - Contractor agrees not to incorporate into or make works developed, dependent upon any original works of authorship on Intellectual Property Rights of third parties without first (a) obtaining State’s prior written permission, and (b) granting or obtaining for State nonexclusive, royalty-free, paid-up, irrevocable, perpetual, world-wide licenses to use, reproduce, sell, modify, publicly and privately display and distribute, for any purpose whatsoever, any such prior works.

a) Contractor is responsible for locating, obtaining, and securing the permissions for the use of intellectual property not owned by the State. This includes images, graphics, and other related files that are needed for the deliverables in this contract.

21) Graphics - The Contractor will provide the State the permission forms for the graphics if they use graphics from other sources such as a library. If they develop original graphics, then the original graphics will become the property of the State. Original graphics must be delivered to the State in both their native graphic design format and in a high-resolution JPEG.

22) Model Release Forms - Model release forms acceptable to the State shall be provided for any recognizable person depicted in any of the photographs. The State may waive this right for certain historical photographs as approved by the Project Manager. All photos shall become the property of the State at the resolution they were taken at during the photo event.

23) Diverse Cultures - The graphics will be sensitive to diverse cultures.

24) Information Privacy - All data collection must conform to the requirements of the Information Practices Act (Civil Code Section 1798 et seq.), the Public Records Act (Government Code Section 6250 et seq.), Government Code Sections 11015.5 and 11019.9, and other applicable laws pertaining to information privacy.

25) Data - Contractor shall make available any Geographic Information System Files in ArcGIS Pro format with fonts, colors, line widths, and legend all prepared in advance and ready for use. To the extent possible, all source files shall be from California Natural Resources Agency Open Data (https://data.cnra.ca.gov/dataset).

26) Domestic Partners, Spouses, Gender, and Gender Identity Discrimination - If the Contract Amount is $100,000 or more, this section is applicable. Contractor is in compliance with, and throughout the Term will remain in compliance with: (i) PCC 10295.3 which places limitations on contracts with contractors who discriminate in the provision of benefits on the basis of marital or domestic partner status; and (ii) PCC 10295.35, which places limitations on contracts with contractors that discriminate in the provision of benefits on the basis of an employee’s or dependent’s actual or perceived gender identity.

27) Standard California Nondiscrimination Construction Contract Specifications - In accordance with 2 CCR § 11122, the contractor shall not use the nondiscrimination standards to discriminate against any person because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decision-making, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

28) Public Health - The Commission adheres to the Governor’s Executive Orders and state-wide health and safety orders, including but not limited to those relating to the COVID-19 virus. All work performed on state property shall be conducted in accordance with health and safety laws, orders, and state health guidance.

29) Validity - The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.

30) Governing Law - This contract is governed by and shall be interpreted in accordance with the laws of the State of California.

31) Conflict with Existing Law. The Contractor and the Commission agree that, if any provision of this Agreement is found to be illegal or unenforceable, such term or provision shall be deemed stricken and the remainder of this Agreement shall remain in full force and effect. Either party having knowledge of such terms or provisions shall promptly inform the other of the presumed non-applicability of such provisions. Should the offending provision to the heart of this Agreement, this Agreement shall be terminated in a manner commensurate with the interest of both parties, to the maximum extent reasonable.

32) GenAI Technology Use & Reporting

a) During the term of the contract, Contractor must notify the State in writing if their services or any work under this contract includes, or makes available, any previously unreported GenAI technology, including GenAI from third parties or subcontractors. Contractor shall immediately complete the GenAI Reporting and Factsheet (STD 1000) to notify the State of any new or previously unreported GenAI technology. At the direction of the State, Contractor shall discontinue the use of any new or previously undisclosed GenAI technology that materially impacts functionality, risk, or contract performance, until the use of such GenAI technology has been approved by the State.

b) Failure to disclose GenAI use to the State and submit the GenAI Reporting and Factsheet (STD 1000) may be considered a breach of the contract by the State at its sole discretion and the State may consider such failure to disclose GenAI and/or failure to submit the GenAI Reporting and Factsheet (STD 1000) as grounds for the immediate termination of the contract. The State is entitled to seek any and all relief it may be entitled to as a result of such non-disclosure.

c) The State reserves the right to amend the contract, without additional cost, to incorporate GenAI Special Provisions into the contract at its sole discretion and/or terminate any contract that presents an unacceptable level of risk to the State.