IFB_2024-18_A14_-_Model_Contract_-_Exh._D_-_FINAL.docx

IFB #2024-03 Page 1 of 3 State Lands Commission | [Contractor name] Batiquitos Lagoon Maintenance Dredging Project

EXHIBIT D

SPECIAL TERMS AND CONDITIONS

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

EXHIBIT E (part 2)

IFB #2024-018 | Model Contract – Exhibit D Page 1 of 7 State Lands Commission | [Contractor name] Prosser Dam Road Fuel Reduction Project – School Lands Parcel #062-002

EXHIBIT D

SPECIAL TERMS AND CONDITIONS

1) Termination Clause – The Commission 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 Commission should substantially fail to perform its responsibilities as provided herein. Comment by Beard, Kevin@SLC: Bidder to update the header of this Model Contract Exhibit D with the Bidder’s business name; and REVIEW Exhibit D - Special Terms & Conditions.

2) Potential Subcontractors – Nothing contained in this Agreement or otherwise, shall create any contractual relationship between the Commission and any subcontractors, and no subcontract shall relieve the Contractor of their responsibilities and obligations hereunder. The Contractor agrees to be as fully responsible to the Commission 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 Commission's obligation to make payments to the Contractor. As a result, the Commission shall have no obligation to pay or to enforce the payment of any money to any subcontractor.

3) Liabilities – The Contractor is advised that this project is located in a designated School Lands Parcel. Activities on the site are subject to Federal, State, and local regulatory agency inspections to review compliance with environmental laws and regulations. The Contractor shall fully cooperate with any representative from any Federal, State, or local regulatory agency who may visit the job site and shall provide immediate notification to the Commission Project Coordinator, who shall accompany them on any subsequent site inspections. The Contractor shall complete, maintain, and make available to the Commission Project Coordinator or regulatory agency personnel all documentation relating to environmental compliance under applicable Federal, State, and local laws and regulations. The Contractor shall immediately notify the Commission Project Coordinator if a Notice of Violation (NOV) is issued to the Contractor.

a) The Contractor shall be responsible for all damages to persons, property, wildlife, habitat, infrastructure, and water resulting from Contractor action or inaction under this Agreement, as well as for the payment of any civil fines or penalties which 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 law or regulation, including but not limited to any civil fines or penalties assessed upon the Commission. Any required corrective or remedial measures to cure violations, restore the property, or compensate for damages resulting from fault or negligence of the Contractor shall be fully borne by the Contractor. Should a Notice of Violation (NOV), Notice of Noncompliance (NON), Notice of Deficiency (NOD), or similar regulatory agency notice be issued to the Commission on account of the actions or inactions of the Contractor or one of its subcontractors in the performance of work under this contract, the Contractor shall fully cooperate with and indemnify the Commission in defending against the regulatory assessment of any civil fines or penalties arising out of such actions or inactions and shall be responsible for all costs of defense and any penalties issued. Should damage or loss occur related to the actions or inactions of the Contractor or one of its subcontractors in the performance of work under this contract, the Contractor shall fully cooperate with and indemnify the Owner for any litigation and/or claims arising thereunder.

4) Indemnity for Use of Roads – In addition to Contractor’s indemnity obligations stated in Exhibit C, Contractor and subcontractors of any tier working on the Project and accessing the roads within the Pannonia Association Inc. Homeowner’s Association shall indemnify and hold harmless the Pannonia Association Inc. Homeowner’s Association and owners of real property adjacent to the Pannonia Association Inc. Homeowner’s Association’s roads (collectively the “HOA and HOA Members”) from any and all damages resulting from such contractor’s or subcontractor’s use of the Property. Contractor and subcontractors of any tier working on the under this agreement and accessing the Pannonia Association Inc. Homeowner’s Association roads shall either indemnify the HOA and HOA Members for any damage or destruction to its roads or fences, or other property, occurring by reason of the exercise of rights granted herein, or to replace or restore said property.

5) 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 which 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 Owner. Any work done that does not comply with any laws, rules, or regulations shall be remedied at the Contractor's expense.

6) Insurance Requirements – The Contractor agrees that all insurance coverages herein provided for 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 Commission 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 Commission 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:

i) be in a form, and written by an insurer, reasonably acceptable to California State Lands Commission

ii) be maintained at Contractor's sole expense

iii) Require at least thirty (30) days written notice to Commission prior to any cancellation, nonrenewal, or material modification of insurance coverage.

c) 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.

d) All Insurance companies issuing such policies shall be licensed to do business in the State of California.

e) Required Certificates – 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.

i) 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 and with limits not less than $1,000,000 per occurrence and $2,000,000 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 following parties as additional insureds: (1) State of California, its officers, agents, and employees; (2) Pannonia Ranchos Association, Inc. and its members . Additional insured endorsements are required for the commercial general liability policy.

(1) Logging Operations Broad Form Property Damage – Contractor shall include, in accordance with Licensed Timber Operator – A licensing requirements, Logging Operations Broad Form Property Damage coverage with a minimum limit of $1,000,000 per occurrence.

ii) 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.

iii) 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 shall 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.

iv) Pollution/Environmental Liability – Contractor shall maintain environmental liability insurance covering the Contractor’s liability for bodily injury, property damage, and environmental damage resulting from pollution and related costs incurred, all arising out of the work or services performed under this Agreement. Coverage shall be provided for both the work performed on site and during the transport of hazardous materials. Limits of not less than $1,000,000 combined single limit per occurrence shall be provided. The policy shall include the State of California, its officers, agents, and employees as additional insured.

v) Logging Operations Broad Form Property Damage

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 their 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.

b) In the event the Contractor fails to keep in effect at all times all required license(s) and permit(s), the Commission 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 Labor Code Section 3700, 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 Commission $50.00 for each calendar day, or portion thereof, for each worker paid by Contractor or subcontractor under Contractor, 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 hours a worker is to be employed is limited to eight (8) hours a day and forty (40) hours a week. Work performed by employees or contractors in excess of eight hours per day, and 40 hours during one week, shall be permitted upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half time basic rate of pay, as provided in Labor Code Section 1815. The Contractor shall forfeit, as a penalty to the Commission, $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, pursuant to Labor Code Section 1813.

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 they are employed and shall be employed only at the work of the craft or trade to which they are registered. 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 Immigrants – 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 (5) years, been convicted of violating a state or federal law regarding the employment of undocumented immigrants. See Public Contract Code Section 6101.

11) National Labor Relations Certification – By signing this Agreement, 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 (2) year period due to 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 shall require all 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 shall 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 to access 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 Commission 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 section 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 shall 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 Commission, 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) 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.

17) Confidentiality and Publicity – Contractor shall retain all information provided by the Commission and stakeholders in the strictest confidence. The Contractor shall 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.

18) 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 Commission.

19) 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 Commission’s prior written permission, and (b) granting or obtaining for Commission 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 permissions for the use of intellectual property not owned by the Commission. This includes images, graphics, and other related files that are needed for the deliverables in this contract.

20) Graphics – Contractor shall provide the Commission 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 shall become the property of the Commission. Original graphics must be delivered to the Commission in both their native graphic design format and in a high-resolution JPEG.

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

22) Diverse Cultures – Any graphics shall be sensitive to diverse cultures.

23) 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, California Code, GOV 11015.5. and 11019.9, and other applicable laws pertaining to information privacy.

24) 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).

25) 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 shall 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.

26) 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 Commission property shall be conducted in accordance with current health and safety laws, orders, and state health guidance.

27) 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.

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

29) 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 go 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.

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