Manned_Model_Agreement.pdf

STATE OF CALIFORNIA

STANDARD AGREEMENT

STD 213 (Rev 06/03) AGREEMENT NUMBER

15M900001

REGISTRATION NUMBER

1. This Agreement is entered into between the State Agency and the Contractor named below:

STATE AGENCY'S NAME

The Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun

CONTRACTOR'S NAME

To Be Determined (TBD) Upon Award

2. The term of this

Agreement is:

June 2016 or Upon Approval By DGS (whichever occurs later) through May 31, 2021

3. The maximum amount $ TBD Upon Award of this Agreement is: (TBD Dollars and Zero Cents)

4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a part of the Agreement.

Exhibit A – Scope of Work 6 pages Exhibit B – Budget Detail and Payment Provisions 2 pages Exhibit B, Attachment 1 – Fee Schedule 1 page Exhibit C* – General Terms and Conditions GTC 610 6/09/2010 Exhibit D – Special Terms and Conditions 12 pages Exhibit E – Additional Provisions 1 page

Items shown with an Asterisk (*), are hereby incorporated by reference and made part of this agreement as if attached hereto.

These documents can be viewed at www.ols.dgs.ca.gov/Standard+Language

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.

CONTRACTOR California Department of General Services Use Only

CONTRACTOR’S NAME (if other than an individual, state whether a corporation, partnership, etc.)

TBD Upon Award BY (Authorized Signature)

DATE SIGNED(Do not type)

PRINTED NAME AND TITLE OF PERSON SIGNING

ADDRESS

STATE OF CALIFORNIA

AGENCY NAME

The Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun

BY (Authorized Signature)

DATE SIGNED(Do not type)

PRINTED NAME AND TITLE OF PERSON SIGNING Click here to enter text.

Allen Garfinkle, Executive Director

660 Davis Street, San Francisco, CA 94111

Board of Pilot Commissioners / [Contractor's Name] Agreement Number 15M900001

Exhibit A, Page 1 of 6

SCOPE OF WORK

1. BACKGROUND

The Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun (BOPC), an agency of the State of California, licenses and regulates approximately sixty

(60) maritime pilots who navigate large vessels on the Bays of San Francisco, San Pablo, Suisun, Monterey, and navigable tributaries to Stockton and Sacramento. The pilotage ground covers 70 separate terminals in ten counties.

Contractor agrees to provide manned scale model training services for pilots in the BOPC’s Pilot Continuing Education Program and for certain selected trainees in the Pilot Trainee Training Program (Participants) as required by law under Harbors and Navigation Code (HNC) Section 1171.5 and Title 7, California Code of Regulations (CCR) Sections 215 and 214, more fully described herein.

2. LOCATION OF SERVICES

The BOPC shall ensure that the Participants arrive at the [a major airport specified by Contractor in the Request for Proposal Cost Proposal Worksheet]. Contractor’s services shall be performed at [Contractor’s facility address] (Training Facility). Contractor’s services shall include transportation for Participants to and from airport, travel to and from lodging to Training Facility, lodging and meals.

3. PERFORMANCE OF SERVICES

A five (5) day training course session shall be offered to BOPC-selected Participants two (2) times annually, or three (3) times at the State’s option, at dates and times mutually agreed upon between Contractor and the BOPC. Typically, there will be a minimum of six (6) and maximum of eight (8) Participants per course session. The exact number of Participants attending each course session will be mutually agreed to between the BOPC and the Contractor in advance of training.

Exhibit A, Page 2 of 6

4. AGREEMENT REPRESENTATIVES

The Agreement Representatives are:

BOPC

Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun

CONTRACTOR

[TBD]

NAME

Allen Garfinkle

NAME

[TBD]

TELEPHONE NUMBER

(415) 397-2253

FAX NUMBER

(415) 397-9463

TELEPHONE NUMBER

FAX NUMBER

E-MAIL

allen.garfinkle@bopc.ca.gov

E-MAIL:

[TBD]

Direct all Agreement inquiries to:

BOPC

Board of Pilot Commissioners for the Bays of San Francisco, San Pablo, and Suisun

CONTRACTOR

[TBD]

ATTENTION

Roma Cristia-Plant

ATTENTION

[TBD]

ADDRESS

660 Davis Street, San Francisco, CA 94111

TELEPHONE

NUMBER

(415) 397-2253

FAX NUMBER

(415) 397-9463

TELEPHONE NUMBER

FAX NUMBER

roma.cristia@bopc.ca.gov

5. SERVICES TO BE PROVIDED

A. Practical and Policy Information

1) The Contractor agrees to provide to the BOPC-selected Participants, all supplies, materials, tools, equipment, labor, personnel, transportation between major airport and lodging, transportation between lodging and training facility, lodging and meals as specified herein, pay all taxes, insurance, bonds, license and permit fees, and all other direct and indirect costs necessary to provide a manned scale model shiphandling training course, five (5) days in length two to three (2-3) times per year.

2) Training services shall be performed at Contractor's Training Facility.

3) Contractor shall provide a written course completion certificate for each Participant that completes training, or a written notice of non-completion, as applicable.

4) Contractor shall provide a Certificate of Insurance in accordance with the Insurance

Requirements set forth in this Agreement.

Exhibit A, Page 3 of 6

5) Contractor shall provide a Certificate of Status issued by California’s Office of the

Secretary of State or a copy of the firm’s active on-line status information downloaded from the California Business Portal website prior to commencement of services.

B. Facility Qualification Requirements

The Contractor’s Training Facility must meet the following specifications:

1) A private lake dedicated to training, separate from other bodies of water/waterways that are not used for training.

2) Ability to maintain a controlled, constant level of water in the lake during training.

3) A minimum 40,000 square meters of lake area available for training.

4) A shallow water maneuvering area of not less than 20,000 square meters of the total lake area (half of the minimum square meters required for training with a minimum of three models on the water at the same time).

5) Have the ability to repair or replace all course essential equipment on site without impacting the delivery of the course curriculum.

6) Have a minimum of four (4) ship models all at the same scale, including one model being a twin screw or Azipod type suitable for cruise ship training.

7) Have a minimum of two (2) tug models suitable for use in tank vessel escort and shiphandling exercises.

8) The facility must be able to provide not less than 1:2 instructor-to-student ratio. The facility must be able to provide a minimum of three (3) instructors who are pilots or former pilots for a class of six (6) trainees, or a minimum of four (4) instructors who are pilots or former pilots for a class of eight (8) trainees.

9) The facility must be able to provide the BOPC a written trainee evaluation upon course completion.

10) The training provider must be able to provide training over a five (5) year period, and evidence this commitment in an executed Agreement with the Board.

11) The facility must provide participants with transportation between the major airport specified in their proposal and lodging, transportation between lodging and the training facility, and lodging and meals as specified herein. Travel time shall be no more than 2 hours from the major airport to lodging, and no more than one (1) hour between lodging and the training facility. Acceptable lodging, travel time and other specifics are described in Section C.

[BOPC reserves the right to include specific provisions from the Contractor’s proposal (Proposal) in any resultant Agreement.]

Exhibit A, Page 4 of 6

C. Contractor Qualification Requirements

1) Contractor shall provide Participants’ meals and lodging for seven (7) days during each training course, near Contractor’s training facility as specified in the RFP and Proposal. Acceptable lodging shall be equivalent to facilities with three (3) stars as described on the HotelStars.EU website at:

http://www.hotelstars.eu/index.php?id=criteria.

2) Contractor will provide Participants’ transportation to and from the airport to lodging, and between lodging and the training facility as specified in the RFP and Agreement.

Travel time shall be no more than 2 hours from the [name of major airport] to lodging, and no more than 1 hour between lodging and the Training Facility.

[BOPC reserves the right to include specific provisions from the Contractor’s proposal (Proposal) in any resultant Agreement.]

D. Training Curriculum

1) The training course shall include, but not be limited to, theoretical in classroom lectures followed by practical exercises on a lake using scale models. All training shall be conducted in the English language, and all supplies, curricula, materials and signage shall be in English. The manned model training curriculum shall include, but not be limited to the following:

a) Study of turning in deep and shallow water.

b) Study of the role of the pivot point in ship maneuvers.

c) Docking/undocking without tugs:

i. Docking stemming current with anchors.

ii. Docking with current abeam.

d) Maneuvering an Azipod equipped vessel:

i. Backing on a range.

ii. Docking in a narrow area in shallow water.

iii. Various dockings with cross-currents simulating that found at San Francisco

Pier 27/35.

iv. Crash stops on a range.

v. Docking at a finger pier.

e) Approach with stern current, turn into current and dock stemming current using anchors.

Exhibit A, Page 5 of 6

f) Approach with stern current, turn into current and dock stemming current without anchors.

g) Precision anchoring without tugs or thrusters.

h) Transit with current abeam and turning in a basin without current.

i) Maneuvering into deep water channel.

j) Emergency Maneuvers:

i. Zig-zag maneuvers with/without tug at stern and engine/rudder failure.

ii. Maneuvers with tug at stern and engine/rudder failure in a channel.

k) Entering and proceeding through channels and docking.

l) Meeting and overtaking in a narrow channel.

m) Emergency ship handling in canal and channel:

i. With escort, tractor style tug in tethered mode.

n) Turning ultra large container vessels in a limited size turn basin.

o) Handling ultra large container vessels in narrow channels subject to cross current and interaction forces.

2) At the conclusion of the course, each Participant should be able to:

a) Understand the effects of the ship's behavior when exposed to wind, current, shallow water, interaction with another ship and bank effect.

b) Demonstrate competence in maneuvering ships when entering locks, canals, and channels and when berthing unberthing (with or without current).

c) Demonstrate appropriate safety awareness and adequate reactions when exposed to emergencies.

E. Written Evaluation

1) Contractor will be required to provide a written evaluation of each Participant’s knowledge, experience, and performance obtained or achieved during the training course.

2) Contractor’s written evaluation (Written Evaluation) must provide an assessment covering five categories of skill for each Participant as follows: maneuvering;

learning efficiency; situational awareness, safety awareness, and qualitative remarks.

Grading for each category shall be one of the following: Good, Acceptable, or Needs

Exhibit A, Page 6 of 6

Further Development. The written evaluation shall also indicate whether or not the Participant completed the course.

3) Contractor shall provide one copy of the Written Evaluation for each Participant attending training by email to the BOPC Agreement Representative no later than two

(2) weeks after the conclusion of the Participant’s training course.

Exhibit B, Page 1 of 2

Exhibit B (Standard Agreement)

BUDGET DETAIL AND PAYMENT PROVISIONS

1. INVOICING AND PAYMENT

A. In consideration of the satisfactory completion of the services described herein, and after BOPC receipt and acceptance of the Written Evaluation required for each Participant who attends training as required in Exhibit A, subsection 5. E, the BOPC agrees to pay the Contractor for actual expenditures incurred, in arrears, in accordance with the rates specified in the FEE SCHEDULE as shown in Exhibit B, Attachment 1, which is attached hereto and made a part of this Agreement.

B. Contractor shall submit one (1) original and one (1) copy of each invoice not more frequently than monthly. The invoice shall be submitted by the Contractor in sufficient scope and detail to define the actual work performed by the Contractor and any subcontractors, and describe specific milestones completed, if applicable. The per Participant rate for service rendered shall not exceed those as specified in the FEE SCHEDULE is as shown in Exhibit B, Attachment 1.

C. An invoice shall:

1) Be in arrears.

2) Be on pre-printed bill heads or be signed by Contractor.

3) Include the Agreement Number.

4) Include the name of the Participant, the dates of service, the charge for each

Participant, and the total invoice amount, along with payment instructions.

5) Be submitted to:

Name: Roma Cristia-Plant, Assistant Director Office: Board of Pilot Commissioners Address: 660 Davis Street

San Francisco, CA 94111

2. BUDGET CONTINGENCY CLAUSE

A. It is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the BOPC’s operations, this Agreement shall be of no further force and effect. In this event, the BOPC shall have no liability to pay any funds whatsoever to Contractor or to furnish any other considerations under this Agreement and Contractor shall not be obligated to perform any provisions of this Agreement.

Exhibit B, Page 2 of 2

B. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the BOPC shall have the option to either cancel this Agreement with no liability occurring to the BOPC, or offer an Agreement amendment to Contractor to reflect the reduced amount.

3. PROMPT PAYMENT CLAUSE

Payment will be made in accordance with, and within the time specified in, Government Code Chapter 4.5, commencing with Section 927.

4. FEE SCHEDULE

The FEE SCHEDULE is as shown in Exhibit B, Attachment 1.

Exhibit B, Attachment 1, Page 1 of 1

Attachment 1

FEE SCHEDULE

The table below contains the Contractor’s Fee Schedule to perform the scope of services set forth in this Agreement. The BOPC will only pay for actual services received and accepted pursuant to this Agreement.

Fiscal Year (July 1 – June 30)

Per Participant Flat Rate Fee (in U.S. Dollars irrespective of fluctuations in currency)

Annual Total Per Participant Flat Rate Fee for 16 Participants per fiscal year

2015-2016

2016-2017

2017-2018

2018-2019

2019-2020

Total Agreement Amount for 16 Participants for all listed Fiscal Years

Flat Rate Fee Includes the Contractor providing the following:

1. Training as specified in the Agreement.

2. Transportation for each Participant from airport to lodging and return.

3. Lodging. Acceptable lodging is equivalent to facilities with three (3) stars as described on the

HotelStars.EU website at: http://www.hotelstars.eu/index.php?id=criteria.

4. Transportation from lodging to training facility and return for the duration of the course.

5. Meals. Meals include breakfast, lunch and dinner for each Participant from the time of airport pick up to airport drop off.

Contractor’s designated international airport enabling Contractor to deliver Participants to and from lodging within two (2) hours as specified in Exhibit A, Point 5 (B) ll.

Airport name

Town and country in which airport is located

Airport address

Exhibit D, Page 1 of 12

Exhibit D

SPECIAL TERMS AND CONDITIONS, continued

1. CONTRACT APPROVAL AND COMMENCEMENT OF WORK

This Agreement is not valid unless and until approved by California Department of General Services, if such approval is required by law. The Contractor is not to commence or proceed with any work in advance of receiving notice that the Agreement has been approved. Any work performed by the Contractor in advance of the date of approval by the Department of General Services shall be deemed volunteer work and will not be reimbursed by the BOPC.

2. PERMITS AND LICENSES

Contractor shall carry out its duties and responsibilities herein in accordance with, be limited in the exercise of its rights by, and observe and comply with, any and all federal, state, city and county laws, rules or regulations affecting services under this Agreement. Contractor shall procure and keep in full force and effect during the term of this Agreement all permits and licenses necessary to accomplish the work contemplated in this Agreement. In the event the Contractor fails to keep in effect at all times all required license(s) and permit(s), the BOPC may, in addition to any other remedies it may have, terminate this Agreement upon occurrence of such event.

3. CONSULTANT – STAFF EXPENSES

The Contractor represents that it has or shall secure at its own expense, all staff required to perform the services described in this Agreement. Such personnel shall not be employees of or have any contractual relationship with any governmental entity.

4. NOTICES

The parties agree that to avoid unreasonable delay in the progress of the services performed hereunder, Contractor and the BOPC have designated in Paragraph 4 of Exhibit A, specific Agreement representatives for the purpose of communication between the parties. Any notice or other written communication required, or which may be given hereunder, shall be deemed given when delivered personally, or upon the date of confirmed receipt if delivered by express mail, to the representatives named in Paragraph 4 of Exhibit A.

Exhibit D, Page 2 of 12

5. INSURANCE REQUIREMENTS

Contractor shall comply with all requirements outlined in the (A) General Provisions section and (B) Contract Insurance Requirements outlined in this section. No payments will be made under this Agreement until Contractor fully complies with all requirements.

A. General Provisions Applying to All Policies

1) Coverage Term – Coverage must be in force for the complete term of the

Agreement. If insurance expires during the term of the Agreement, a new certificate must be received by the State at least ten (10) days prior to the expiration of this insurance. Any new insurance must comply with the original Agreement terms.

2) Policy Cancellation or Termination and Notice of Non-Renewal – Contractor is responsible to notify the State a minimum of five (5) business days before the effective date of any cancellation, non-renewal or material change that affects required insurance coverage. In the event Contractor fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Contract upon the occurrence of such event, subject to the provisions of this Contract.

3) Premiums, Assessments and Deductibles – Contractor is responsible for any premiums, policy assessments, deductibles or self-insured retentions contained within their insurance program. All insurance required by this Agreement must allow the State to pay and/or act as the Contractor’s agent in satisfying any self-insured retention (SIR). The choice to pay and/or act as the Contractor’s agent in satisfying any SIR is at the State’s discretion.

4) Primary Clause – Any required insurance contained in this Agreement shall be primary, and not excess or contributory, to any other insurance carried by the State.

5) Insurance Carrier Required Rating – All insurance companies must carry an AM

Best rating of at least “A–”with a financial category rating of no lower than VII, or other rating acceptable to the Department of General Services Office of Risk Insurance Management. If the Contractor is self-insured for a portion or all of its insurance, review of financial information including a letter of credit may be required.

6) Endorsements – Any required endorsements requested by the State must be physically attached to all requested certificates of insurance and not substituted by referring to such coverage on the certificate of insurance.

7) Inadequate Insurance – Inadequate or lack of insurance does not negate the

Exhibit D, Page 3 of 12

Contractor’s obligations under the Agreement.

8) Use of Subcontractors - In the case of Contractor’s utilization of subcontractors to complete the contracted scope of work, Contractor shall include all subcontractors as insured’s under Contractor’s insurance or supply evidence of subcontractor’s insurance to The State equal to policies, coverages, and limits required of Contractor.

9) Insurance provisions may be amended at the approval and discretion of

Department of General Services Office of Risk Insurance Management.

B. Contract Insurance Requirements

Contractor shall display evidence of the following on a certificate of insurance evidencing the following coverages:

1) Commercial General Liability – Contractor shall maintain general liability on an occurrence form with limits not less than $1,000,000 in U.S. Dollars per occurrence for bodily injury and property damage liability combined with a $2,000,000 in U.S.

Dollars annual policy aggregate. The policy shall include coverage for liabilities arising out of premises, operations, independent Contractors, products, completed operations, personal & advertising injury, and liability assumed under an insured Agreement. This insurance shall apply separately to each insured against whom claim is made or suit is brought subject to the Contractor’s limit of liability.

The policy must name the State of California, its officers, agents, and employees as additional insured, but only with respect to work performed under the Agreement.

2) Automobile Liability – Contractor shall maintain motor vehicle liability with limits not less than $1,000,000 in U.S. Dollars per accident. Such insurance shall cover liability arising out of a motor vehicle including owned, hired and non-owned motor vehicles.

3) Workers Compensation and Employers Liability – Contractor shall maintain statutory worker’s compensation and employer’s liability coverage for all its employees who will be engaged in the performance of the Contract. Coverage shall include but not be limited to wage replacement and medical benefits to employees injured in the course of employment. In addition, employer’s liability limits of $1,000,000 in U.S. Dollars are required.

4) Watercraft or Vessel Liability - Contractor shall maintain watercraft or vessel liability with limits not less than $1,000,000 per accident. Such insurance shall cover liability arising out of owned, hired and non-owned watercraft or vessels.

Exhibit D, Page 4 of 12

6. NO AGENCY LIABILITY

The Contractor warrants by execution of this Agreement that no person or selling agency has been employed or retained to solicit or secure this Agreement upon agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, the BOPC shall, in addition to other remedies provided by law, have the right to annul this Agreement without liability, paying only for the value of the work actually performed, or otherwise recover the full amount of such commission, percentage, brokerage, or contingent fee.

7. SETTLEMENT OF DISPUTES

Any dispute concerning a question of fact arising under the terms of this Agreement which is not disposed of within ten (10) working days between the Agreement Representatives shall be brought by the to the attention of the President of the BOPC (President) for resolution. In the event of an unresolved dispute, the BOPC Agreement Representative or the Contractor shall file a "Notice of Dispute" with the President within ten (10) working days of unsatisfactory dispute resolution between the Agreement Representatives. Within ten (10) working days, the President or his designee shall meet with or contact the Contractor and the BOPC Agreement Representative for purposes of resolving the dispute and issue a written decision regarding the dispute. The written decision of the President or his designee shall be final.

In the event of a dispute, the language contained within this Agreement shall prevail over any other language, including that of the bid proposal.

8. POTENTIAL SUBCONTRACTORS

Contractor is required to identify all subcontractors and consultants who will perform labor or render services in the performance of this Agreement. Nothing contained in this Agreement or otherwise, shall create any contractual relation between the BOPC 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 BOPC 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

Exhibit D, Page 5 of 12 obligation from the BOPC’s obligation to make payments to the Contractor. As a result, the BOPC shall have no obligation to pay or to enforce the payment of any moneys to any subcontractor.

9. APPLICABLE LAWS AND REGULATIONS

The Contractor shall be informed of and comply with all federal, State and BOPC statutes, rules and regulations applicable to the Agreement and to those engaged or employed through the Agreement. The Contractor shall hold the BOPC, its officers, agents, and employees harmless and indemnify and defend the BOPC for any claims for damages arising out of occurrences, accidents, or misuse by the Contractor or subcontractors.

10. BOOKS AND RECORDS

Contractor shall keep accurate books and records connected with the performance of this Agreement in English for a period of at least three (3) years. Contractor shall ensure that books and records of subcontractors, suppliers, and other providers shall also be accurately maintained. Such books and records shall be kept in a secure location and shall be available for inspection and copying by the BOPC and its representatives at any time.

11. CONFIDENTIALITY OF DATA

All financial, statistical, personal, technical and other data and information relating to the BOPC’s operation, which are designated confidential by the BOPC and made available to carry out this Agreement, or which become available to the Contractor in order to carry out this Agreement, shall be protected by the Contractor from unauthorized use and disclosure.

The Contractor shall not be required under the provisions of this paragraph to keep confidential any data already rightfully in the Contractor’s possession that is independently developed by the Contractor outside the scope of the Agreement or is rightfully obtained from third parties.

No reports, information, inventions, improvements, discoveries, or data obtained, repaired, assembled, or developed by the Contractor pursuant to this Agreement shall be released, published, or made available to any person (except to the BOPC) in violation of any State or federal law.

Contractor by acceptance of this Agreement is subject to all of the requirements of California Government Code Section 11019.9 and California Civil Code Sections 1798, et seq., regarding the collection, maintenance, and disclosure of personal and confidential information about individuals.

Exhibit D, Page 6 of 12

12. ACCOUNTING PRINCIPLES

The Contractor will adhere to generally accepted accounting principles as outlined by the American Institute of Certified Public Accountants, or similar accounting regulatory or advisory entity if the Contractor is located outside of the United States. Dual compensation is not allowed; Contractor shall not receive simultaneous compensation from two or more funding sources for the same services performed even though both funding sources could benefit.

13. CLAIMS

The BOPC will retain from funds owed or that become owed to Contractor an amount sufficient to cover claims filed pursuant to: Civil Code Sections 3179 et seq.; tax demands filed in accordance with Government Code (GOV) Section 12419.4; claims of State agencies offset under GOV Section 12419.5; or other claims, penalties, and forfeitures for which the BOPC is authorized to retain money.

14. TAXES

The BOPC and Contractor will each bear their own respective Federal, State and local tax liabilities arising from this Agreement. It is expressly understood that neither the BOPC nor the Contractor will assign, shift, pass on or otherwise assume the tax liabilities of the other party.

15. TITLES/SECTION HEADING

Title and headings are for convenience of reference only, and shall have no effect on the construction or legal effect of this Agreement.

16. CONTRACT SUSPENSION

Notwithstanding any other provisions of this Agreement, pursuant to a Governor’s Executive Order or equivalent directive, such as a court order or an order from a Federal, State or regulatory agency, mandating the suspension of BOPC contracts, the BOPC may issue a Suspension of Work Notice (Notice). The Notice shall identify the specific Executive Order or directive and the Agreement number(s) subject to suspension. Unless specifically stated otherwise, all performance under the Agreement must stop immediately upon receipt of the Notice. During the period of contract suspension, Contractor is not entitled to any payment for the suspended work. Once the order suspending BOPC contracts has been lifted, a formal letter from the BOPC will be issued to the Contractor to resume work.

17. FORCE MAJEURE

Neither party to this Agreement shall be liable for damages resulting from delayed or defective performance when such delays arise out of causes beyond the control and without

Exhibit D, Page 7 of 12 the fault or negligence of the offending party. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the State in its sovereign capacity, fires, floods, power failure, disabling strikes, epidemics, quarantine restrictions, and freight embargoes.

18. WAIVERS

No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.

19 NOTICE OF PROCEEDINGS

Contractor shall promptly notify the BOPC in writing of any investigation, examination or other proceeding involving Contractor, including any key personnel, commenced by any regulatory agency, which proceeding is not conducted in the ordinary course of Contractor’s business.

20. CUMULATIVE REMEDIES

The rights and remedies provided herein are cumulative and are not exclusive of any rights or remedies that any party may otherwise have at law or in equity.

This Agreement, any instrument or agreement executed pursuant to this Agreement, and the rights, covenants, conditions and obligations of Contractor and the BOPC contained therein, shall be binding upon the parties and their successors, assigns and legal representatives.

21. PUBLICITY

No publicity release or announcement concerning this Agreement or the transactions contemplated herein shall be issued by Contractor without advance written approval by the

BOPC.

22. SERVICES OR PROCUREMENT RESULTING FROM AGREEMENT

Neither Contractor, nor any of its subsidiaries, officers or directors, may submit a bid or be awarded a contract for the provision of services, procurement of goods or supplies, or any other related action which is required, suggested, or otherwise deemed to be an outgrowth of the advice or recommendations that Contractor provides under this Agreement.

Exhibit D, Page 8 of 12

23 AGREEMENT DOES NOT VIOLATE LAW

Contractor represents and warrants that neither the execution of this Agreement nor the acts contemplated hereby nor compliance by Contractor with any provisions hereof will:

A. Violate any provision of the charter documents of Contractor;

B. Violate any statute or law or ordinance or any judgment, decree, order, regulation or rule of any court or governmental authority applicable to Contractor; or, C. Violate, or be in conflict with, or constitute a default under, or permit the termination of, or require the consent of any person under, any agreement to which Contractor may be bound, the violation of which in the aggregate would have a material adverse effect on the properties, business, prospects, earnings, assets, liabilities or condition (financial or otherwise) of Contractor.

24. POWER AND AUTHORITY

Contractor represents and warrants that it has the power and authority to enter into this Agreement and to carry out its obligations hereunder. The execution of this Agreement has been duly authorized by Contractor and no other proceeding on the part of Contractor is necessary to authorize this Agreement. Contractor has completed, obtained and performed all registrations, filings, approvals, authorizations, consents or examinations required by any government or governmental authority for its acts contemplated by this Agreement.

25. SIGNATURE AUTHORIZATION

The person signing this Agreement warrants that he/she is an agent of Contractor and is duly authorized to enter into this Agreement on behalf of Contractor.

26. ENTIRE AGREEMENT; ORDER OF PRECEDENCE

A. This Agreement, including documents that have been incorporated in this Agreement by reference, contains all representations and the entire understanding between the parties hereto with respect to the subject matter hereof. Any prior correspondence, memoranda or agreements are replaced in total by this Agreement.

B. In the event there are any inconsistencies or ambiguities among the terms of this Agreement and incorporated documents, the following order of precedence shall be used: (i) applicable laws; (ii) the terms and conditions of this Agreement, including exhibits and attachments; (iii) other provisions, terms, or materials incorporated herein.

Exhibit D, Page 9 of 12

27. TERMINATION AT THE OPTION OF THE BOPC

In addition to the provisions of Paragraph 7 of Exhibit C (GENERAL TERMS AND CONDITIONS), this Agreement may be terminated in whole or in part at any time upon thirty

(30) days’ written notice by the BOPC for any reason. Upon receipt of a termination notice, Contractor shall promptly discontinue all services affected unless the notice specifies otherwise. In the event the BOPC terminates all or a portion of this Agreement for any reason, it is understood that the BOPC will provide payment to Contractor for satisfactory services rendered prior to the termination, but not in excess of the maximum amount of this

28. TERMINATION FOR INSOLVENCY

Contractor shall notify the BOPC immediately in writing in the event that Contractor files any federal bankruptcy action or state receivership action, any federal bankruptcy or state receivership action is commenced against Contractor, Contractor is adjudged bankrupt, or a receiver is appointed and qualifies. In the event of any of the foregoing events, or if the BOPC determines, based on reliable information, that there is a substantial probability that Contractor will be financially unable to continue performance under this Agreement, the BOPC may terminate this Agreement and all further rights and obligations immediately.

29. DEFAULT

Default is defined as Contractor failing to perform services required by the Agreement in a satisfactory manner. If, after Agreement award and execution of the Agreement, Contractor defaults, the Agreement may be terminated by the BOPC for non-satisfactory performance.

In the event of termination for default, the BOPC reserves the right to take over and complete the work by contract or other means. In such case, Contractor will be liable to the State for any additional cost incurred by the State to complete the work whether reimbursed or not.

30. EFFECT OF TERMINATION

All duties and obligations of the BOPC and Contractor shall cease upon termination of this Agreement, except that:

A. Each party shall remain liable for any rights, obligations, or liabilities arising from activities carried on by it under this Agreement prior to the effective date of termination;

and, B. Contractor shall provide for the return of all records of the BOPC to the BOPC or its designee and shall cooperate fully to effect an orderly transfer of services.

Exhibit D, Page 10 of 12

31. COMPLIANCE WITH POLITICAL REFORM ACT

Contractor acknowledges that the BOPC is subject to the provisions of the Political Reform Act (GOV Sections 81000 et seq. and all regulations adopted thereunder, including, but not limited to, California Code of Regulations, Title 2, Sections 18700 et. seq.), and Contractor shall comply promptly with any requirement thereunder.

32. CHOICE OF LAW

Notwithstanding Paragraph 14 of Exhibit C (General Terms and Conditions), this Agreement shall be administered, construed, and enforced according to the laws of the State of California (without regard to any conflict of laws or provisions) to the extent such laws have not been preempted by applicable federal law. Any suit brought hereunder, including any action to compel arbitration or to enforce any award or judgment rendered thereby, shall be brought in state court sitting in San Francisco, California, the parties hereby waiving any claim or defense that such forum is not convenient or proper. Each party agrees that any such court shall have in personam jurisdiction over it and consents to service of process in any manner authorized by California law.

33. DISABLED VETERAN BUSINESS ENTERPRISE (DVBE) (If applicable)

A. Contractor agrees that as Contractor of the BOPC, it will meet the requirements of the

State’s policies that embrace section 10115 et seq. of the Public Contract Code) PCC regarding 3% Disabled Veteran Business Enterprise (DVBE) participation goal for state contracts.

B. Nothing shall be construed to authorize Contractor to discriminate in the solicitation or acceptance of bids for subcontracting, or for materials or equipment, on the basis of race, color, sex, ethnic origin or ancestry.

C. Contractor agrees to provide the BOPC or its delegate with any information reasonably necessary to comply with the obligations set forth in the applicable provisions of PCC Sections 10115 et seq. Upon reasonable notice, Contractor shall permit the BOPC or its delegate access to Contractor’s premises during normal business hours to interview employees and to inspect and copy books, records, accounts, and other materials for the purpose of determining compliance with the applicable provisions of PCC Sections 10115 et seq. and California Code of Regulations, title 2, section 1896.60 et seq.

Contractor further agrees to maintain such records for a period of three (3) years after final payment under this Agreement.

34. DVBE PAYMENT CERTIFICATION (If applicable)

Military and Veterans Code (MVC) 999.5(d) requires prime Contractors to certify that payments to DVBE subcontractors were made upon completion of the Agreement. It is the

Exhibit D, Page 11 of 12 prime Contractor’s responsibility to report to the BOPC and to certify that payments are complete. Prime Contractors must return the completed 076-BSS/CBAP_SB548 form via mail or fax to the California Highway Patrol Business Services Section, SB/DVBE Advocate for processing and inclusion in the Agreement file upon completion of the

35. SMALL BUSINESS AND DVBE PARTICIPATION – COMMERC IALLY USEFUL

FUNCTIONS

This solicitation and any resulting Agreement shall be subject to all requirements as set forth in the following code: GOV Sections 14837, 14839, 14842, 14842.5 and MVC Sections 999, 999.6, 999.9.

In part, these codes involve requirements for businesses to qualify as a California certified

Small Business, Micro-business and/or DVBE. The aforementioned companies must perform a commercially useful function to be eligible for award and must be “domiciled” in California. A supplier’s bid will be considered non-responsive and rejected for failure to comply with the definition and requirements set forth in the statutes Contractors found to be in violation of certain provisions within these code sections may be subject to loss of certification, penalties and Agreement cancellation.

36. DVBE REPLACEMENT REQUEST (If applicable)

Contractor understands and agrees that should award of this contract be based in part on their commitment to use the Disabled Veteran Business Enterprise (DVBE) subcontractor(s) identified in their bid or offer, per MVC 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). The Contractor shall submit requests for DVBE substitutions electronically to the California Highway Patrol SB/DVBE Advocate at CertifiedBusiness@chp.ca.gov. Requests to replace a DVBE subcontractor must be amply documented to show that the replacement meets the criteria as specified in the California Code of Regulations (CCR), Title II, Section 1896.64(c) or the PCC Section 4107 (for public works). Failure of Contractor to seek substitution and adhere to the DVBE participation level identified in the bid or offer may be cause for Agreement termination, recovery of damages under rights and remedies due to the BOPC, and penalties as outlined in MVC Section 999.9; PCC Section 10115.10, or PCC Section 4110 (for public works contracts).

37. ACCIDENT PREVENTION

The Contractor shall exercise precaution at all times for the protection of persons (including Participants and employees) and property. Precautionary measures shall include, but not limited to, installation of adequate safety guards and protective devices for all equipment and machinery used in the performance of the Agreement services.

Exhibit D, Page 12 of 12

38. STATE HOLIDAYS

BOPC observes the holidays identified on the Department of Personnel Administration (DPA) web-site: http://www.calhr.ca.gov/Pages/home.aspx under “Popular Links” then “State Holidays.” Unless otherwise BOPC office will be closed on any holiday that falls on or is observed on a weekday.

Agreement Number 15M90000X

Exhibit E, Page 1 of 1

Exhibit E

ADDITIONAL PROVISIONS

1. CONFLICT OF INTEREST; NO PROFIT

A. Contractor certifies that its employees and the officers of its governing body shall avoid any actual or potential conflicts of interest, and that no officer or employee who exercises any functions or responsibilities in connection with this Agreement shall have any personal financial interest or benefit which either directly or indirectly arises from this

B. Contractor shall establish safeguards to prohibit its employees or its officers from using their positions for a purpose which could result in private gain or which gives the appearance of being motivated for private gain for themselves or others, particularly those with whom they have family, business, or other ties.