2016_08_16_study
Costa Mesa Sanitary District
... an Independent Special District
AGENDA
Michael Scheafer
President
Arthur Perry
Vice President
Robert Ooten
Secretary
Arlene Schafer
Assistant Secretary
James Ferryman
Director
Public Comments. Any member of the public may address the Board. Speakers on
agenda items should identify themselves to the Deputy Clerk before the meeting so that
their input can be provided at the time the item is considered. Speakers on non-agenda
items will be heard under Public Comments. Pursuant to State law, the Board may not
discuss or take action on non-agenda items except under special circumstances.
Speakers must limit their remarks to three minutes or as decided upon by the Presiding
Officer. The Presiding Officer reserves the right to declare any speaker out of order.
Obtaining Agenda Materials: The public is entitled to copies of all documents that are
made part of the agenda packet. If any document or other writing pertaining to an
agenda item is distributed to all or a majority of the Board after the packet is prepared, a
copy of that writing may be obtained at the District offices at 628 W. 19th Street, Costa
Mesa, California. The Deputy Clerk of the District may be contacted at (949) 645-8400.
In Compliance with ADA: Contact Noelani Middenway, (949) 645-8400, 48 hours prior
to meeting if assistance is needed (28 CFR 35.102.35.104 ADA Title II).
BOARD OF DIRECTORS STUDY SESSION
290 PAULARINO AVENUE, COSTA MESA, CA 92626
Tuesday, August 16, 2016
9:30 AM
I.CALL TO ORDER
II.ROLL CALL
(If absences occur, consider whether to deem those absences excused based on
facts presented for the absence - such determination shall be the permission
required by law.)
III.PUBLIC COMMENTS
This time has been set aside for persons in the audience to make comments on
items within the subject matter jurisdiction of the Costa Mesa Sanitary District that
are not listed on this agenda. Members of the public will have the opportunity to
address the Board of Directors about all other items on this agenda at the time
those items are considered.
Under the provisions of the Brown Act, the Board of Directors is prohibited from
taking action on oral requests but may refer the matter to staff or to a subsequent
meeting. The Board of Directors will respond after public comment has been
received. Please state your name. Each speaker will be limited to four (4)
continuous minutes.
IV.ITEMS OF STUDY
1.Organics Recycling Tonnages – FY2015-16
Recommendation: That the Board of Directors receive and file the report.
2.Code Enforcement Officer Report - July 2016
Recommendation: That the Board of Directors receive and file the report.
3.Alkaline Battery Recycling Program 2016-17
Recommendation: That the Board of Directors receive and file the report.
4.290 Paularino Avenue - Award Tenant Improvement Contract to Kinney
Construction in the amount of $750,308
Recommendation: That the Board of Directors award a contract to Kinney
Construction in the amount of $750,308.
5.Authorize the filing of a Writ of Mandate or Other Action to Correct False or
Misleading Statements or Statements That Are Inconsistent with Election Law
in the Elections Materials Submitted in Favor of the Advisory Vote on
Consolidation by the Mesa Consolidated Water District
Recommendation: Closed Session to Meet with Legal Counsel (if necessary)
Initiation of litigation (Government Code section 54956.9(d)(4)- One case
6.Future Study Session Items
Recommendation: That the Board of Directors provide staff with direction on
items to be placed on future study session agendas.
V.ORAL COMMUNICATIONS AND DIRECTOR COMMENTS
VI.ADJOURNMENT
THE NEXT STUDY SESSION OF THE COSTA MESA SANITARY DISTRICT BOARD
OF DIRECTORS WILL BE HELD ON TUESDAY, SEPTEMBER 13, 2016 AT 9:30
A.M. IN THE DISTRICTS BOARD ROOM, 628 W. 19TH STREET.
Costa Mesa Sanitary District
... an Independent Special District
Organics Recycling Tonnages – FY2015-16
Item Number:1.
Recommendation/Notes:
Recommendation: That the Board of Directors receive and file the report.
ATTACHMENTS:
Description Type
Organics Recycling Tonnages – FY2015-16 Cover Memo
Month/
Year Tons
Jul-16 742.41
Aug-16
Sep-16
Oct-16
Nov-16
Dec-16
Jan-17
Feb-17
Mar-17
Apr-17
May-17
Jun-17
Total 742.41
742.41
0
100
200
300
400
500
600
700
800
TONSJul-16 Aug-16 Sep-16 Oct-16 Nov-16 Dec-16 Jan-17 Feb-17 Mar-17 Apr-17 May-17 Jun-17
Tons 742.41
ORGANICS RECYCLING TONNAGES
FY 16/17
Costa Mesa Sanitary District
... an Independent Special District
Code Enforcement Officer Report - July 2016
Item Number:2.
Recommendation/Notes:
Recommendation: That the Board of Directors receive and file the report.
ATTACHMENTS:
Description Type
Code Enforcement Officer Report - July 2016 Cover Memo
Protecting our community's health and the environment by providing solid waste and sewer collection services.
www.cmsdca.gov
Costa Mesa Sanitary District
….an Independent Special District
Memorandum
To: Board of Directors
Via: Scott Carroll, General Manager
From: Edward Roberts, Code Enforcement Officer
Date: August 05, 2016
Subject: Code Enforcement Officer Report – July 2016
This report summarizes major points for three ordinance enforcement topics covering
scavenging, graffiti, and trash container enforcement. For the month of July, the
CMSD Code Enforcement Officer focused his efforts on patrols in various parts of the
community. The goal is to identify and deter instances of scavenging and residential
trash carts left within the public view.
In the month of July, the District saw a number of complaints filed with CMSD Code
Enforcement staff regarding scavenging activity in the city. As with most scavenging
complaints, the alleged violations take place in the early morning hours. In order to
address resident concerns, the Code Enforcement Officer investigated all complaints
and adjusted his schedule to accommodate requests for early morning or weekend
enforcement. Included below are instances of scavenging that were detected while the
Officer was investigating specific complaints.
Proactive Scavenging Investigations: 09
2045 Anaheim Avenue- While patrolling the 2000 block of Anaheim Avenue, Officer
Roberts observed a male subject rummaging through a CMSD cart. As Officer Roberts
approached the location, he observed that the male subject had a shopping cart with
him that contained a large amount of recyclable material. The male was stopped and
Board of Directors
July 2016
contacted pending further investigation. During the course of the contact, the male
subject admitted to having scavenged the recyclable material in his shopping cart from
various CMSD carts. The subject was advised that scavenging is a prohibited activity
and directed to return all scavenged items to a nearby CMSD cart. The subject was
sent on his way with a verbal admonishment.
2034 Charle Street- While on patrol, Officer Roberts contacted a female subject at
this location in reference to scavenging through a CMSD trash cart. The subject was
advised that scavenging is prohibited and sent on her way.
2365 Orange Avenue- While patrolling the 2000 block of Orange Avenue, Officer
Roberts observed a male subject scavenging through a CMSD cart. As Officer Roberts
drove closer, he observed that the male subject had a push cart containing a large
amount of recyclable material. Officer Roberts decided to contact the subject in order
to determine the nature of his activity. During the course of the contact, the subject
admitted to having scavenged recyclable material from CMSD carts along Orange
Avenue and surrounding streets. The subject was advised that scavenging is a
prohibited activity and made to return all recyclable items to a nearby CMSD cart. The
subject was sent on his way with a verbal admonishment.
1946 Parsons Street- While patrolling the 1900 block of Parsons Street, Officer
Roberts’s attention was directed toward a female subject that was rummaging through
a CMSD trash cart. Officer Roberts contacted the female in front of 1946 Parsons
Street and asked about her about her scavenging activity. During the course of the
contact, the female admitted that she regularly scavenges from CMSD carts to support
herself. The subject was advised that scavenging is prohibited and instructed to return
all recyclable material to a nearby trash cart. The subject was sent on her way with a
verbal admonishment.
Board of Directors
July 2016
2932 Peppertree Lane– While patrolling the east alley running behind the 2900 block
of Peppertree Lane, Officer Roberts observed a male subject rummaging through a
CMSD cart. Officer Roberts contacted the subject to the rear of 2932 Peppertree Lane
in order to investigate further. During the course of the contact, the male admitted to
having scavenged items from CMSD carts in various locations of the west side of
Costa Mesa. Based on his level of cooperation, the male was advised to return all
items scavenged from CMSD carts and admonished regarding prohibited activity.
2956 Peppertree Lane- While patrolling the east alley of the 2900 block of Peppertree
Lane, Officer Roberts contacted a female subject at this location in reference to
scavenging through a CMSD trash cart. The subject was advised that scavenging and
sent on her way.
2925 Redwood Avenue- While on patrol in the 2900 block of Redwood Avenue,
Officer Roberts contacted a male subject at this location in reference to scavenging
through a CMSD trash cart. The subject was advised that scavenging and sent on his
way.
660 Surf Street– While conducting a patrol check of the 600 block of Surf Street,
Officer Roberts observed a male subject that was rummaging through a CMSD cart in
front of 660 Surf Street. Officer Roberts contacted the male in front of the location and
conducted a scavenging investigation. During the course of the investigation, the
subject admitted to scavenging regularly in order to support himself. The male was
advised and agreed to return all scavenged items to a nearby CMSD trash cart.
Board of Directors
July 2016
580 Yorkshire Street- Officer Roberts contacted a male subject at this location for
rummaging through a CMSD trash cart. The subject was made advised of the CMSD
ordinance prohibiting scavenging and compelled to return all items to a nearby CMSD
trash cart. The subject was sent on his way with a verbal admonishment.
____________________________________________________________________
***Directed Patrol Activity***
Officer Roberts performed a series of early morning patrols in response to complaints
of scavenging activity in the residential areas surrounding 19th Street. During the
course of the patrol effort, two scavengers were located rummaging through residential
trash carts. Officer Roberts contacted the subjects in a consensual manner and
advised them of CMSD early morning patrol enforcement. Both subjects were made to
return all items to nearby CMSD carts and sent on their way.
END OF SCAVENGING ENFORCEMENT REPORT
Board of Directors
July 2016
Trash Container Enforcement:
In the month of July, there were a few customer complaints reported to the District
Headquarters regarding trash carts in public view. The following is a list of locations
where trash cart violations were found and addressed by the Courtesy Notice process.
Total Cases: 92
The following locations received First Warnings:
(1) Albert Place - Storage of carts in public view.
(3) Anaheim Avenue-Storage of carts in public view.
(2) Arnold Avenue- Storage of carts in public view.
(2) Avalon Street - Storage of carts in public view.
(4) Baker Street - Storage of carts in public view.
(2) Beach Street - Storage of carts in public view.
(1) California Street - Storage of carts in public view.
(1) Cecil Place - Storage of carts in public view.
(2) Charle Street- Storage of carts in public view.
(1) Colgate Drive - Storage of carts in public view.
(3) College Avenue-Storage of carts in public view.
(1) Coolidge Avenue - Storage of carts in public view.
(2) Congress Street - Storage of carts in public view.
(3) Cornell Drive- Storage of carts in public view.
(1) Cove Street- Storage of carts in public view.
(1) Darrell Street - Storage of carts in public view.
(2) Elden Avenue - Storage of carts in public view.
(1) Fairway Drive - Storage of carts in public view.
Board of Directors
July 2016
(1) Fordham Drive - Storage of cart in public view.
(2) Fullerton Avenue- Storage of carts in public view.
(2) Gibraltar Avenue - Storage of carts in public view.
(2) Governor Street- Storage of carts in public view.
(3) Hamilton Street- Storage of carts in public view.
(2) Iowa Street - Storage of carts in public view.
(4) Joann Street- Storage of carts in public view.
(1) Knowell Place- Storage of carts in public view.
(3) Maple Street - Storage of carts in public view.
(1) Meyer Avenue - Storage of carts in public view.
(2) Miner Street - Storage of carts in public view.
(1) Monte Vista Avenue - Storage of carts in public view.
(1) New Hampshire Drive - Storage of carts in public view.
(2) Orange Avenue- Storage of carts in public view.
(3) Pomona Avenue - Storage of carts in public view.
(1) Puente Avenue- Storage of carts in public view.
(1) Ross Street- Storage of carts in public view.
(2) Rutgers Drive- Storage of carts in public view.
(3) Santa Ana Avenue- Storage of carts in public view.
(2) Santa Isabel Avenue - Storage of carts in public view.
(3) Senate Street - Storage of carts in public view.
(2) Surf Street- Storage of carts in public view.
(4) Wallace Avenue - Storage of carts in public view.
(2) Westminster Avenue - Storage of carts in public view.
(3) Wilson Street - Storage of carts in public view.
Board of Directors
July 2016
(2) 16th Street - Storage of carts in public view.
(2) 20th Street - Storage of carts in public view.
(3) 21st Street - Storage of carts in public view.
END OF TRASH CONTAINER ENFORCEMENT REPORT
____________________________________________________________________
No cases of graffiti on a trash carts were opened in the month of July
Board of Directors
July 2016
Scavenging Report – July 2016
Locations:
2045 Anaheim Avenue 2956 Peppertree Lane
Board of Directors
July 2016
2034 Charle Street 2925 Redwood Avenue
2365 Orange Avenue 660 Surf Street
1946 Parsons Street 580 Yorkshire Street
2932 Peppertree Lane
Costa Mesa Sanitary District
... an Independent Special District
Alkaline Battery Recycling Program 2016-17
Item Number:3.
Recommendation/Notes:
Recommendation: That the Board of Directors receive and file the report.
ATTACHMENTS:
Description Type
Battery Recycling Program 2016-17 Cover Memo
Protecting our community's health and the environment by providing solid waste and sewer collection services.
www.cmsdca.gov
Costa Mesa Sanitary District
….an Independent Special District
Memorandum
To: Board of Directors
Via: Scott Carroll, General Manager
From: Gina Terraneo, Management Analyst
Date: August 16, 2016
Subject: Alkaline Battery Recycling Program 2016-2017
Summary
On July 12, 2016, the Board of Directors directed staff to provide an update regarding
the upcoming Alkaline Battery Recycling Program. The Battery Recycling Program will
begin on October 3, 2016 and end on April 7, 2017.
Staff Recommendation
That the Board of Directors receive and file the report.
Analysis
The Alkaline Battery Recycling Program will work as follows:
1. Mercury Disposal Systems, Inc. (MDS), will deliver a few 5-gallon battery
recycling buckets to each participating school. Additional buckets will be
available upon request.
2. MDS staff will pick up the batteries the first Friday of every month (usually in the
main office). Schools can also skip a month if not enough batteries are
collected. The first collection will be on Friday, November 4, 2016, and the
last collection will be on Friday, April 7, 2017.
3. MDS will tag the buckets per school, weigh them, and send CMSD the monthly
totals per school.
4. At the conclusion of the program, a CMSD Director will present the checks to
the schools.
Please note: A minimum of 50 lbs. will be required to receive the minimum
award of $300. On average, a 5-gallon bucket of alkaline batteries weighs
about 50-60 pounds.
Board of Directors
August 16, 2016
Page 2 of 3
This program encourages children of all ages to learn about recycling and
conservation efforts in school, so that they may apply these principals at home, teach
their families, and become good stewards of the environment.
Strategic Plan Element & Goal
This item complies with the objective and strategy of Strategic Element 2.0, Solid
Waste, which states:
“Objective: Our objective is to manage the collection and waste diversion of
residential trash in the most economical and environmentally friendly way.”
“Strategy: We will do this by looking for ways to improve efficiencies, achieve high
customer satisfaction, and considering prudent new waste diversion methods.”
Legal Review
Not applicable at this time.
Environmental Review
Having the District establish a convenient method for school children and families to
dispose of batteries is an approximate equivalent alternative to having the battery
users find another disposal location. If anything, the collection by the District prevents
batteries from being illegally placed in the trash and making their way to landfills. As
presented, the District’s battery recycling program is not a disturbance of the
environment directly or indirectly similar to grading or construction and is not a project
under CEQA or the District’s CEQA Guidelines.
Financial Review
For Fiscal Year 2016-2017, the Battery Recycling program budget is $20,000. There
are approximately 30 elementary and middle schools in the District’s service area.
*If all 30 schools participate, and they each collect 50 pounds of batteries per month
for six months, the total would be 9,000 pounds. It costs $0.76 per pound for battery
disposal services (this price includes pick-up services). Therefore, the total disposal
costs would be $6,840.
The budget will be used as follows:
Fundraiser Rewards $10,100
Promotion, Materials, and Supplies (ads, flyers, etc.) $2,000
Disposal Costs* $6,840
Total Program Costs $18,940
Board of Directors
August 16, 2016
Page 3 of 3
Categories Rewards
1st Place $1,000
2nd Place $600
3rd Place $400
4th Place (minimum award $300 award) x 27 schools $8,100
Total $10,100
CMSD staff will monitor the Battery Recycling Program on a monthly basis to ensure
that the program is within budget.
Public Notice Process
Copies of this report are on file and will be included with the complete agenda packet
for the August 16, 2016 Board of Directors Study Session meeting at District
Headquarters and posted on the District’s website.
Reviewed by:
Wendy H. Davis
Interim Finance Manager
Costa Mesa Sanitary District
... an Independent Special District
290 Paularino Avenue - Award Tenant Improvement Contract to Kinney Construction
in the amount of $750,308
Item Number:4.
Recommendation/Notes:
Recommendation: That the Board of Directors award a contract to Kinney Construction in the
amount of $750,308.
ATTACHMENTS:
Description Type
290 Paularino Avenue - Award Tenant Improvement Contract to Kinney
Construction in the amount of $750,308 Cover Memo
Protecting our community's health and the environment by providing solid waste and sewer collection services.
www.cmsdca.gov
Costa Mesa Sanitary District
….an Independent Special District
Memorandum
To: Board of Directors
From: Scott Carroll, General Manager
Date: August 16, 2016
Subject: 290 Paularino Avenue - Award Tenant Improvement Contract to Kinney
Construction for $750,308
Summary The Costa Mesa Sanitary District acquired the facility at 290 Paularino Avenue as its
new headquarters. The facility was purchased to alleviate limited parking at the
current headquarters (628 W. 19th Street) where staff has to park at the Costa Mesa
Senior Center to ensure there is adequate parking for the pubic during Board of Directors meetings. The new facility will also create a new community room for the public to rent and the community room will also provide adequate public seating during
Board meetings.
Staff Recommendation
That the Board of Directors award a contract to Kinney Construction for $750,308.
Analysis
To receive bids from general contractors that are considered well qualified and experience performing tenant improvements, CMSD embarked on a pre-qualification
process approved by the California Department of Industrial Relations. A notice
requesting pre-qualification packages from general contractors was published at
several construction trade journals and said notice was published in the newspaper, as
per CMSD’s Operations Code Section 4.04.110(c).
On July 1, 2016, CMSD received ten prequalification packages. On July 11, 2016 a
committee that consisted of the general manager, district engineer and senior project
manager from Trendzitions (CMSD’s project management firm) interviewed all ten
general contractors on their qualifications, experience, past performance and
Board of Directors August 16, 2016
Page 2 of 3
readiness to begin work. The committee decided six general contractors met our
qualifications criteria and invited them to solicit bids.
On July 20, 2016 the selected contractors received the Request for Proposal (RFP),
drawings and specification booklet. On Monday, August 8, 2016 at 2:00 pm bids were
publicly opened and recorded as follows:
Seashore Construction, Inc. $629,947.00
Hanna Construction, Inc. $737,470.00
Kinney Construction $738,000.00
Good-Men, Inc. $809,998.00 United Contractors, Inc. $947,748.33
Swinerton Builders $956,834.00
Even though Seashore Construction is the apparent low bidder, they were disqualified
because the contractor failed to list his subcontractors in his proposal. Public Contract Code Section 4107 provides that a bidder must list all major subcontractors (in excess
of half of one percent of the total bid) and their contractor license numbers must be
provided. Hanna Construction did not list their subcontractors as well, so they were
disqualified.
Kinney Construction did list all his subcontractors and their contractor license number.
In fact, Kinney Construction’s proposal is the most thorough and complete proposal of
all six proposals. Therefore, staff is recommending awarding a contract to Kinney
Construction. Kinney’s proposal was slightly adjusted after it was learned that he
included three electronic projection screens when only one was specified in the drawings. His proposal was reduced by $4,992.
Strategic Plan Element Goal
This item complies with Strategic Element 5.0, Administrative Management, and Strategic Goal No. 5.1, Develop a future plan for operational facilities adequacy.
Legal Review
District Counsel has provided input to staff regarding bid responsiveness and has reviewed and approved the attached agreement with Kenney Construction.
Environmental Review
The Board has previously determined that the purchase and use of the building as District headquarters will be similar to its existing use as professional office use and is
therefore exempt from CEQA as a minor alteration of an existing structure or facility
(15 Cal Code Regs Sec 1530), as a conversion of an existing structure from one use
to another with only minor exterior modifications (15 Cal Code Regs 15303) and as an
infill development project (15 Cal Code Regs 153040).
Financial Review
Board of Directors August 16, 2016
Page 3 of 3
On April 18, 2016, the Board of Directors approved a tenant improvement budget of
$845,000, which included a 10% contingency. Because Kinney Construction proposal
is below budget, staff is recommending two alternates be added.
1. Tackable wall panels for the Emergency Operations Center (EOC). This will
allow staff to place sewer atlas maps, flip charts, photos, street maps, etc. on the wall. Cost: $12,800
2. Paint front building entry. Cost: $4,500
Adding the two alternates will bring the tenant improvement cost to $750,308. Staff is
recommending awarding a contract to Kinney Construction for $750,308. Staff will
budget a 10% contingency of approximately $75,000, which will bring the projected
total cost to $825,000. Public Notice Process Copies of this report are on file and will be included with the complete agenda packet
for the August 16, 2016 Board of Directors study session meeting at District
Headquarters (628 W. 19th Street) and posted on the District’s website.
Reviewed by:
Wendy Hooper Davis
Finance Manager
Attachments:
A. Prequalification Notice
B. Prequalification Notice Published in Newspaper
C. Bid Sheet D. Contract – Kinney Construction
Protecting our community's health and the environment by providing solid waste and sewer collection services.
www.cmsdca.gov
Costa Mesa Sanitary District
….an Independent Special District
REQUEST FOR PRE-QUALIFICATION OF BIDDERS COMMENCING WITH FORTHCOMING PUBLIC WORK BID
Tenant Improvements for 290 Paularino Avenue
Notice is hereby given that Costa Mesa Sanitary District (CMSD) has determined that all bidders
on the tenant improvements for the new headquarters at 290 Paularino Avenue to be undertaken
by the CMSD must be pre-qualified prior to submitting a bid on that project. It is mandatory that
all Contractors who intend to submit a bid, fully complete the pre-qualification questionnaire,
provide all materials requested herein, and be approved by CMSD to be on the final qualified Bidders list. No bid will be accepted from a Contractor that has failed to comply with these
requirements. If two or more business entities submit a bid as part of a Joint Venture, or expect
to submit a bid as part of a Joint Venture, each entity within the Joint Venture must be separately
qualified to bid. The last date to submit a fully completed questionnaire is Friday, July 1, 2016.
Contractors are encouraged to submit pre-qualification packages as soon as possible, so that they may be notified of omissions of information to be remedied or of their pre-qualification status well in advance of the bid advertisement for this project. Project description is below:
Location: 290 Paularino, Costa Mesa, CA
Size: 11,600 square feet
Project Scope: The Costa Mesa Sanitary District purchased this building for their new headquarters. The construction improvement scope includes:
Remodeling the lobby, various private offices, meeting rooms, break room, upgrading the
restrooms for ADA compliance and adding a large town hall meeting room. The exterior will
require minor building repairs and re-slurry and paint the parking lot. The facility will have new flooring and paint throughout.
Answers to questions contained in the questionnaire, information about current bonding capacity,
notarized statement from surety, and the most recent reviewed financial statements, with
accompanying notes and supplemental information, are required. CMSD use these documents as the basis of rating Contractors in respect to the size and scope of contracts upon which each Contractor is qualified to bid. CMSD reserves the right to check other sources available.
CMSD’s decision will be based on objective evaluation criteria. Pre-qualifying bid interviews
will be conducted where the Contractor’s assigned superintendent to this project will take part of
the interview process. CMSD reserves the right to adjust, increase, limit, suspend or rescind the pre-qualification rating
based on subsequently learned information. Contractors whose rating changes sufficient to
disqualify them will be notified, and given an opportunity for a hearing consistent with the
hearing procedures described below for appealing a pre-qualification rating.
Costa Mesa Sanitary District Page 2 of 3
While it is the intent of the pre-qualification questionnaire and documents required therewith to
assist CMSD in determining bidder responsibility prior to bid and to aid CMSD in selecting the
lowest responsible bidder, neither the fact of pre-qualification, nor any pre-qualification rating, will preclude CMSD from a post-bid consideration and determination of whether a bidder has the
quality, fitness, capacity and experience to satisfactorily perform the proposed work, and has
demonstrated the requisite trustworthiness.
The pre-qualification packages can be downloaded from CMSD’s website at http://cmsdca.gov/images/rfps/prequalification_notice.pdf and should be submitted under seal
and marked “CONFIDENTIAL” to Trendzitions, 25691 Atlantic Ocean, Suite B13, Lake
Forest, California 92630. Questions can be directed to Mary Bradley at 949-727-9100 or
at mbradley@trendzitions.com.
The pre-qualification packages (questionnaire answers and financial statements) submitted by Contractors are not public records and are not open to public inspection. All information
provided will be kept confidential to the extent permitted by law. However, the contents may be
disclosed to third parties for purpose of verification, or investigation of substantial allegations, or
in the appeal hearing. State law requires that the names of contractors applying for pre-qualification status shall be public records subject to disclosure, and the first page of the questionnaire will be used for that purpose. Each questionnaire must be signed under penalty of
perjury in the manner designated at the end of the form, by an individual who has the legal
authority to bind the Contractor on whose behalf that person is signing. If any information
provided by a Contractor becomes inaccurate, the Contractor must immediately notify CMSD and provide updated accurate information in writing, under penalty of perjury.
CMSD reserves the right to waive minor irregularities and omissions in the information
contained in the pre-qualification application submitted, to make all final determinations, and to
determine at any time that the pre-qualification procedures will not be applied to a specific future public construction project.
Contractors may submit pre-qualification packages to the offices of Trendzitions during regular
business hours (Monday through Friday from 8:00 am to 5:00 pm). Contractors who submit a
complete pre-qualification package will be notified of their qualification status no later than ten business days after submission of the information.
CMSD may refuse to grant pre-qualification where the requested information and materials are
not provided, or not provided by Friday, July 1, 2016. There is no appeal from a refusal for an
incomplete or late application, but re-application for a later project is permitted. The closing time for bids will not be changed in order to accommodate supplementation of incomplete
submissions, or late submissions.
Where a timely and completed application results in a rating below that necessary to pre-qualify,
an appeal can be made. An appeal is begun by the Contractor delivering notice to CMSD of its appeal of the decision with respect to its pre-qualification rating, no later than ten business days prior to the closing time for the receipt of bids for this public construction project. Without a
timely appeal, the Contractor waives any and all rights to challenge the decision of CMSD,
whether by administrative process, judicial process or any other legal process or proceeding.
Costa Mesa Sanitary District Page 3 of 3
If the Contractor gives the required notice of appeal and requests a hearing, the hearing shall be
conducted so that it is concluded no later than five business days after CMSD’s receipt of the
notice of appeal, and no later than five business days prior to the last date for the receipt of bids on the project. The hearing shall be an informal process conducted by a panel to whom the
Board of Directors of the Costa Mesa Sanitary District has delegated responsibility to hear such
appeals (the “Appeals Panel”). At or prior to the hearing, the Contractor will be advised of the
basis for Costa Mesa Sanitary District’s pre-qualification determination. The Contractor will be
given the opportunity to present information and present reasons in opposition to the rating. Within one day after the conclusion of the hearing, the Appeals Panel will render its decision. It
is the intention of Costa Mesa Sanitary District that the date for the submission and opening of
bids will not be delayed or postponed to allow for completion of an appeal process.
Note: A contractor may be found not pre-qualified for bidding on a specific public construction contract to be let by Costa Mesa Sanitary District, or on all
contracts to be let by CMSD until the contractor meets CMSD’s requirements. In
addition, a contractor may be found not pre-qualified for either:
(1) Omission of requested information or
(2) Falsification of information
* * * * *
NOTICE: To contractors who are using subcontractors for this job, please be advised
that the Costa Mesa Sanitary District will require, as to subcontractors, one of the
following:
The qualification of subcontractors in the following crafts or trades, following
acceptance of your bid, but before the award is made:
________________________ ________________________
Pre-qualification of all subcontractors.
Pre-qualification of subcontractors in certain crafts.
Post-bid qualification review.
Product(s): Daily Pilot, dailypilot.com, CApublicnotice.com_DP
AdSize(s):3 Column,
Run Date(s):Friday, June 03, 2016
Color Spec.B/W
Preview
Order ID:4227819
Page 1 of 4
6/1/2016 10:40:25 AMPrinted:
GROSS PRICE * :$489.81
* Agency Commission not included
Legal-DP-Bids WantedPACKAGE NAME:
Order ID:4227819
Page 2 of 4
6/1/2016 10:40:25 AMPrinted:
GROSS PRICE * :$489.81
* Agency Commission not included
Legal-DP-Bids WantedPACKAGE NAME:
Order ID:4227819
Page 3 of 4
6/1/2016 10:40:25 AMPrinted:
GROSS PRICE * :$489.81
* Agency Commission not included
Legal-DP-Bids WantedPACKAGE NAME:
Order ID:4227819
Page 4 of 4
6/1/2016 10:40:25 AMPrinted:
GROSS PRICE * :$489.81
* Agency Commission not included
Legal-DP-Bids WantedPACKAGE NAME:
Seashore Construction
1930 Old Tustin Ave
Santa Ana, CA 92705
Bill Tucker
714.245.1600 x210
714.623.0879 cell
Hanna Construction
1203 W. Shelly Ct
Orange, CA 92868
George J. Hanna
714.633.8200
george@hannaconstruction.net
Kinney Construction
830 W Fletcher Ave
Orange, CA
Jim Kinney
714.904.7255
jim@kinneyco.com
PROJECT DURATION:70 88 75
DAYS TO MOBILIZE 4 5 5
Disqualified - Did not
include list of
subcontractors and their
contractor's license
number
Disqualified - Did not
include list of
subcontractors and their
contractor's license
number
Responsive Low Bid
629,947.00$ 737,470.00$ 738,000.00$
United Contractors
Jim Jaquette
10725 Ellis Ave, Unit D
Fountain Valley, CA 92708
949.945.0905
jjaquette@buildwithunited.com
Swinerton Builders
17731 Mitchell North #200
Irvine, CA 92614
Good Men Roofing &
Construction
Richard Harmon
3940 Hancock St
San Diego, CA 92110
619.221.0873
Richard.Harmon@goodmencorp.com
PROJECT DURATION:76 8 weeks 60
DAYS TO MOBILIZE 4 14 3
Disqualified - Did not
include list of
subcontractors and their
contractor's license
number
Disqualified - Did not
include list of
subcontractors and their
contractor's license
number
947,748.33$ 956,834.00$ 809,998.00$
Six companies qualified to bid. Seashore, Hanna, United and Swinerton were disqualified because they did not include a list
of subcontractors and their contractor's license number as required per California Public Contract Code Section 4107.
Recommendation: Kinney Construction, lowest bidder with completed bid package.
GENERAL CONTRACTOR RECOMMENDATION
COSTA MESA SANITARY DISTRICT HEADQUARTERS
290 Paularino, Costa Mesa, Ca 92626
8/11/16
CONSTRUCTION SCOPE DESCRIPTION
PREVAILING WAGES
TOTAL BASE BID
CONSTRUCTION SCOPE DESCRIPTION
PREVAILING WAGES
TOTAL BASE BID
1
CONTRACT Tenant Improvements at 290 Paularino Avenue
This Agreement (hereinafter referred to as “AGREEMENT”) is made and entered into this
day of , 2016, by and between the COSTA MESA SANITARY DISTRICT, hereinafter referred to as “DISTRICT,” and KINNEY CONSTRUCTION, INC.,
hereinafter referred to as “CONTRACTOR.”
WITNESSETH
That for and in consideration of the promises and agreements hereinafter made and exchanged, DISTRICT and CONTRACTOR mutually agree as follows:
SCOPE OF THE WORK AND CONTRACT SUM
Scope of the Work. CONTRACTOR shall perform all the work and shall provide and
furnish all labor, materials, tools, expendable equipment, and utility and transportation services required to construct tenant improvements at 290 Paularino Avenue (hereinafter referred to as
“PROJECT”). This project has been registered with the Department of Industrial Relations using
form PWC-100 pursuant to Labor Code section 1773.3.
1. Labor and Materials. All of said work to be performed and materials to be furnished shall be in strict accordance with the plans and specifications entitled Costa Mesa Sanitary District Tenant Improvement, 290 Paularino Avenue, and CONTRACTOR agrees to do
everything required by this AGREEMENT, the plans and specifications, and the CONTRACT
DOCUMENTS.
All labor, materials, tools, equipment, and services shall be performed under the direction and administration of, and subject to the approval of, DISTRICT or its authorized representatives.
2. Contract Sum. DISTRICT agrees to pay, and CONTRACTOR agrees to accept in full payment for the work above agreed to be done, the sum of Seven Hundred Thirty-Three
Thousand Dollars ($733,000). NOTICE TO PROCEED AND TIMING
3. Notice to Proceed. No work, services, material, or equipment shall be performed or furnished under this AGREEMENT unless and until a “Notice to Proceed” has been given to
CONTRACTOR by DISTRICT and all bonds and certificates of insurance required pursuant
hereto have been furnished to and approved by DISTRICT.
4. Time of Completion. CONTRACTOR agrees to commence the work to be
performed under this AGREEMENT on the start of the construction date specified in the “Notice To Proceed” and to diligently prosecute the work to completion by the completion date specified
in the Notice to Proceed, which the parties agree is seventy five (75) WORKING DAYS.
5. Time of the Essence. Time is of the essence of this AGREEMENT.
6. Liquidated Damages/Additional Actual Damages. It is agreed by the parties
2
hereto that, in case the total work called for hereunder in all parts and requirements is not finished or completed within the number of working days as set forth herein, damage will be sustained by
the DISTRICT and that it is and will be impractical and extremely difficult to ascertain and
determine the actual damage which the DISTRICT will sustain in the event of and by reason of such delay. It is therefore agreed the CONTRACTOR will pay to the DISTRICT the sum of Five
Hundred Dollars ($500.00) per calendar day for each and every day of delay in finishing the work in excess of the number of days prescribed in Section 4, and the CONTRACTOR agrees to pay said liquidated damages herein provided for and further agrees that the DISTRICT may deduct
the amount thereof from any monies due or that may become due the CONTRACTOR hereunder. Liquidated damages shall be a measurement of the sum to compensate the public for inconvenience from not having the work completed on time and the cost of DISTRICT staff to
monitor the job beyond the completion date. DISTRICT shall further be entitled to recover its additional actual damages incurred which shall be supplemental to the liquidated damages.
Provided strict compliance with Section 21 below is effected, the CONTRACTOR will be granted an extension of time and will not be assessed with liquidated damages for any portion of
the delay in completion of the work beyond the time named herein due to unforeseeable causes
beyond the control and without the fault or negligence of the CONTRACTOR, including, but not restricted to, acts of God or of the public enemy, fire, floods, epidemics, quarantine restrictions,
strike, and unsuitable weather, or delays of subcontractors due to such causes.
JOB PROGRESS AND COOPERATION
7. Job Progress. CONTRACTOR agrees to maintain a realistic critical path analysis
throughout the project. CONTRACTOR agrees to meet with DISTRICT’s PROJECT MANAGER
or designee on a weekly or other periodic basis, or as requested by DISTRICT to review job
progress. “PROJECT MANAGER” for purposes of this AGREEMENT shall be Mary Bradley of Trendzitions, or such designee as has been given the authority for this PROJECT in a written
designation. CONTRACTOR agrees to provide DISTRICT with critical path analysis documentation whenever job progress is impacted so that the completion date may be affected or whenever delays or other impacts may give rise to CONTRACTOR’s claim for additional days
or additional damages. Delay and other claims of damages based on CONTRACTOR’s planned early completion are prohibited.
8. Cooperation. CONTRACTOR agrees to cooperate with DISTRICT’s PROJECT MANAGER or designee and to provide submittals and participate in meetings in a good faith effort
to complete the PROJECT. If disagreements arise, CONTRACTOR agrees to document the
disagreement in accordance with these AGREEMENT provisions and provide DISTRICT with early notice of the same for later resolution but shall continue to cooperate and prosecute the
work to completion in a diligent manner. Nothing herein shall excuse CONTRACTOR’s strict compliance with Section 21 if additional time or money is sought.
9. CONTRACTOR’s Independent Investigation.
(a) No plea of ignorance of conditions that exist or that may hereafter exist, or of
conditions or difficulties that may be encountered in the execution of the work under this AGREEMENT, as a result of failure to make the necessary independent examinations and investigations and no plea of reliance on initial investigations or reports prepared by DISTRICT
for purposes of letting this AGREEMENT out to bid will be accepted as an excuse for any failure or omission on the part of the CONTRACTOR to fulfill in every detail all requirements of said
AGREEMENT, specifications, and plans, nor will such reasons be accepted as a basis for any
claims whatsoever for extra compensation or for an extension of time except as provided in
1
CONTRACT Tenant Improvements at 290 Paularino Avenue
This Agreement (hereinafter referred to as “AGREEMENT”) is made and entered into this
day of , 2016, by and between the COSTA MESA SANITARY DISTRICT, hereinafter referred to as “DISTRICT,” and KINNEY CONSTRUCTION, INC.,
hereinafter referred to as “CONTRACTOR.”
WITNESSETH
That for and in consideration of the promises and agreements hereinafter made and exchanged, DISTRICT and CONTRACTOR mutually agree as follows:
SCOPE OF THE WORK AND CONTRACT SUM
Scope of the Work. CONTRACTOR shall perform all the work and shall provide and
furnish all labor, materials, tools, expendable equipment, and utility and transportation services required to construct tenant improvements at 290 Paularino Avenue (hereinafter referred to as
“PROJECT”). This project has been registered with the Department of Industrial Relations using
form PWC-100 pursuant to Labor Code section 1773.3.
1. Labor and Materials. All of said work to be performed and materials to be furnished shall be in strict accordance with the plans and specifications entitled Costa Mesa Sanitary District Tenant Improvement, 290 Paularino Avenue, and CONTRACTOR agrees to do
everything required by this AGREEMENT, the plans and specifications, and the CONTRACT
DOCUMENTS.
All labor, materials, tools, equipment, and services shall be performed under the direction and administration of, and subject to the approval of, DISTRICT or its authorized representatives.
2. Contract Sum. DISTRICT agrees to pay, and CONTRACTOR agrees to accept in full payment for the work above agreed to be done, the sum of Seven Hundred Thirty-Three
Thousand Dollars ($733,000). NOTICE TO PROCEED AND TIMING
3. Notice to Proceed. No work, services, material, or equipment shall be performed or furnished under this AGREEMENT unless and until a “Notice to Proceed” has been given to
CONTRACTOR by DISTRICT and all bonds and certificates of insurance required pursuant
hereto have been furnished to and approved by DISTRICT.
4. Time of Completion. CONTRACTOR agrees to commence the work to be
performed under this AGREEMENT on the start of the construction date specified in the “Notice To Proceed” and to diligently prosecute the work to completion by the completion date specified
in the Notice to Proceed, which the parties agree is seventy five (75) WORKING DAYS.
5. Time of the Essence. Time is of the essence of this AGREEMENT.
6. Liquidated Damages/Additional Actual Damages. It is agreed by the parties
3
Section 21 of this AGREEMENT.
(b) Except as specifically provided in the CONTRACT DOCUMENTS, information
provided for purposes of bidding do not represent “conditions indicated” as being in existence and are provided for the convenience of the CONTRACTOR in making its own investigation.
LABOR, WAGE, AND HOURS LAWS
10. Public Work. Notice is provided pursuant to Labor Code Section 1781 that this is a “public work” as defined in Chapter 1, Part 7, Division 2 of the Labor Code, to which Section 1771 applies. CONTRACTOR shall pay prevailing wages, unless exempt. 11. Contractor/Subcontractors Registered. Contractor and all subcontractors are
registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5
and paid its annual fee.
12. Prevailing Wage Rates. Pursuant to Labor Code Section 1773.2, copies of the
prevailing rate of per diem wages can be found at http://www.dir.ca.gov/OPRL/PWD/index.htm and are on file at the DISTRICT, which shall be made available to any interested party upon
request. CONTRACTOR shall post a copy of the determination of the director of the prevailing
rate of per diem wages at each job site. Said per diem wages are deemed to include employer payments for health and welfare, pension, vacation and travel time, and subsistence pay, all in
accordance with Section 1773.1 of the Labor Code.
13. Payroll Records/ Electronic Records.
(a) The provisions of Section 1776 of the Labor Code regarding the preparation, maintenance, and filing of payroll records are applicable to this AGREEMENT. Each contractor
and subcontractor shall keep accurate payroll records showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee
employed by him or her in connection with the public work. Certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement or contain the same information.
THE CONTRACTOR’S AND SUBCONTRACTOR’S PAYROLL RECORDS SHALL BE
SUBMITTED TO DISTRICT ON A WEEKLY BASIS. THE CONTRACTOR SHALL BE RESPONSIBLE FOR SUBMITTAL OF SUBCONTRACTOR’S PAYROLL RECORDS.
Additionally, CONTRACTOR or subcontractor has 10 days in which to comply subsequent to
receipt of a written notice requesting the records enumerated in Section 1776, subdivision (a), of the Labor Code. In the event that CONTRACTOR or subcontractor fails to comply within the 10-
day period, he or she shall, as a penalty to DISTRICT, forfeit One Hundred Dollars ($100.00) for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated. DISTRICT may deduct this penalty from any monies due or that may become due CONTRACTOR
under this AGREEMENT.
(b) Contractor shall submit electronic payment records to the Department of Industrial Relations.
14. Penalty. CONTRACTOR and any subcontractor under CONTRACTOR shall, as
a penalty to DISTRICT, forfeit not more than Two Hundred Dollars ($200.00) for each calendar
day, or portion thereof, for each worker paid (either by CONTRACTOR or any subcontractor under
4
CONTRACTOR) less than the prevailing rate set forth herein on the work provided for in this AGREEMENT. DISTRICT may deduct the penalty from any monies due or that may become due
CONTRACTOR under this AGREEMENT. The difference between the prevailing wage rates and
the amount paid to each worker for each calendar day, or portion thereof, for which each worker was paid less than the prevailing wage rate shall also be paid to each worker by CONTRACTOR
or subcontractor, in accordance with Section 1775 of the Labor Code of the State of California.
15. Apprentices. If applicable, the provisions of Labor Code Section 1777.5 requiring
the use of apprentices in certain ratios to journeymen on the PROJECT are hereby imposed upon CONTRACTOR. 16. Legal Day’s Work. In the performance of this AGREEMENT, not more than eight (8) hours shall constitute a day’s work, and the CONTRACTOR shall not require more than eight
(8) hours of labor in a day from any person employed by him hereunder except as provided in
Labor Code Section 1815. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seq.), of the Labor Code of the State of California, and it is agreed that the CONTRACTOR
shall forfeit to the DISTRICT as a penalty the sum of Twenty-Five Dollars ($25.00) for each worker
employed in the execution of this AGREEMENT by the CONTRACTOR or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8)
hours in any one (1) calendar day and forty (40) hours in any one (1) week in violation of said
article. DISTRICT may deduct this penalty from any sums owed pursuant to this AGREEMENT.
PROGRESS PAYMENTS AND RETENTION 18. Progress Payments. Pursuant to Public Contract Code Section 7201, prior to the
fifteenth (15th) day of the month next following the commencement of the work, there shall be
paid to CONTRACTOR a sum equal to ninety-five percent (95%) of the value of the work completed since the commencement of the work as determined by DISTRICT and thereafter prior
to the fifteenth (15th) day of each successive month as the work progresses. CONTRACTOR shall be paid such sum as will bring the payments up each month to ninety-five percent (95%) of the value of the work completed since the commencement of the work as determined by
DISTRICT, less all previous payments and authorized deductions, provided that CONTRACTOR submits his request for payment prior to the last Wednesday of each preceding month. Pursuant
to Public Contract Code 7107, DISTRICT shall make the final payment, if unencumbered, or any
part thereof unencumbered, within sixty (60) days after the date of completion. Notwithstanding the foregoing, CONTRACTOR shall provide DISTRICT with all documentation required by this
AGREEMENT, including the Final Closeout Agreement and Release of All Claims, as well as any
other documents required by the CONTRACT DOCUMENTS such as as-builts, red-line plans, manufacturers and specific guarantees, and owner’s manuals prior to receiving final payment.
Payments shall be made on demands drawn in the manner required by law, accompanied by a
certificate signed by the CONTRACTOR, stating that the work for which payment is demanded has been performed in accordance with the terms of the AGREEMENT, and that the amount
stated in the certificate is due under the terms of the AGREEMENT. Partial payments on the
AGREEMENT price shall not be considered as an acceptance of any part of the work. Nothing herein shall limit DISTRICT’s right to withhold one hundred fifty percent (150%) of disputed
amounts in the event of a good faith dispute.
19. Prompt Payments. DISTRICT agrees to promptly make progress payments on undisputed and properly submitted payment requests within thirty (30) days and to comply with
the provisions of Public Contract Code Section 20104.50.
5
20.Retention Securities. Pursuant to California Public Contract Code Section22300, CONTRACTOR will be entitled to post approved securities with the DISTRICT or an
approved financial institution in order to have the DISTRICT release funds retained by the
DISTRICT to insure performance of the AGREEMENT.
CHANGE ORDERS / EXTRA TIME / EXTRA WORK
21.Request for Extra Time or Additional Compensation. The following provisionsmust be strictly complied with to obtain additional time to complete the job or to obtain additional compensation:
(a) Request for Change Order – Additional Time. The CONTRACTOR shall promptly
notify the DISTRICT of any delay and shall, within ten (10) days from the beginning of any such
delay, notify the DISTRICT in writing of the cause of the delay, and the DISTRICT shall extend the time for completing the work if in its judgment the cause so merits. The DISTRICT’s
determination on this matter shall be final and conclusive on the parties hereto. CONTRACTOR
shall be required to submit a Request for Change Order, as set forth in this AGREEMENT, to the DISTRICT’S PROJECT MANAGER within ten (10) days of the beginning of such a delay. No
adjustment shall be allowed for such delay unless there is strict compliance with this contractual
provision. CONTRACTOR’s remedy shall be limited to the extra days granted and to any damages that it may be entitled to using the formula agreed to by the parties for all damages as
provided in Section 22.
(b) Request for Change Order – Additional Compensation Sought.
(i) Should CONTRACTOR claim that the DISTRICT is demanding extra work from it or consider any work demanded of it to be outside the requirements of this
AGREEMENT or if it considers any instruction, ruling, or decision of the PROJECT MANAGER to be unfair, he shall within ten (10) days after any such demand is made, or instruction, ruling, or decision is given, file a written protest with the PROJECT MANAGER
stating clearly and in detail his objections and the reasons therefor. Except for such protests and objections as are made of record, in the manner and within the time above
stated, the CONTRACTOR shall be deemed to have waived, and does hereby waive, all
claims for extra work, damages, and extensions of time on account of demands, instructions, rulings, and decisions of the District Engineer.
(ii) Should CONTRACTOR claim that additional compensation is due it because of an unforeseen condition, CONTRACTOR shall bring that to DISTRICT’s
attention promptly and within ten (10) days and shall submit a written request for change order within ten (10) days to DISTRICT.
(c) Request for Change Order – DISTRICT Form to Be Used. DISTRICT’s Request
for Change Order form, which is attached hereto as part of this AGREEMENT, shall be the form that must be submitted in a timely fashion for a request for either additional time or additional
compensation. By initialing, the CONTRACTOR specifically agrees to use said form for those purposes and understands that, if he does not submit that form in a timely manner, he waives the right to request additional time or compensation. No oral modifications or other forms of
communication shall be accepted as compliance with this provision. The written request for change order requirement cannot be waived.
Contractor’s Initials _______ KC
6
(d) Change Order. Should DISTRICT agree that a change order is warranted for either additional time or compensation, a written change order shall be executed. If DISTRICT
does not agree to the change order, and CONTRACTOR has provided timely notices and
submitted its written request for change order in a timely manner and on the proper form, CONTRACTOR will have preserved the issue for later resolution in compliance with other
procedures set forth in this AGREEMENT or as the law may otherwise allow.
(e) Change Order Authority. The following authority is given to approve Change
Orders:
(i) Change Orders for Extra Time. The District Manager shall have the
authority to grant extra days without limit.
(ii) Change Orders for Extra Compensation. The District Manager shall have
the authority to make change orders up to an aggregate amount of Ten Percent (10%) of the original contract amount or Fifteen Thousand Dollars ($15,000), whichever is greater.
22.Damages / Extra Work Compensation. The parties have agreed to modify theformula for damages set forth in the Standard Specifications for Public Works Construction. The
parties agree that the following damage formula shall be used to measure all of CONTRACTOR’s
damages or extra work required by this PROJECT. CONTRACTOR shall be limited to the following:
Direct costs Mark-up
Labor 20%
Materials 15% Equipment Rental 15%
Other Items 15% Subcontracted work 10% (first $5,000) Subcontracted work 5% (work in excess of first $5,000)
Specialty Subcontracting (required by extra work) 5% (Provided at least three (3)
competitive bids are obtained
and CONTRACTOR selected the lowest bidder)
Excluded from recovery shall be so-called “Eichleay damages,” including, but not limited to, home office overhead, insurance and bonding costs, lost bonding capacity, lost profits, and
lost interest.
CONTRACTOR acknowledges that his recovery for damages or extra work is limited as provided in this Section.
Contractor’s Initials ________
SUBCONTRACTING
23. Subcontracting. CONTRACTOR acknowledges that he or she is aware of the
provisions of the “Subletting and Subcontracting Fair Practices Act” (Public Contract Code Sections 4100 et seq.) and agrees to comply with all applicable provisions thereof. If any part of
KC
7
the work to be done under this AGREEMENT is subcontracted, the subcontract shall be in writing and shall provide that all work to be performed thereunder shall be performed in accordance with
this AGREEMENT. Upon request, certified copies of any or all subcontracts shall be furnished to
DISTRICT. The subcontracting of any or all of the work to be done will in no way relieve CONTRACTOR of any part of his responsibility under the AGREEMENT. Pursuant to Public
Contract Code Section 4110, CONTRACTOR’s violation of any of the provisions of the Subletting and Subcontracting Fair Practices Act violates this AGREEMENT, and DISTRICT may cancel this AGREEMENT or assess CONTRACTOR a penalty of not more than 10 percent (10%) of the
subcontract involved. DISTRICT may deduct this penalty from any monies due or that may become due to CONTRACTOR for work performed under this AGREEMENT.
All persons engaged in the work, including subcontractors, will be considered as employees of CONTRACTOR. CONTRACTOR will be held responsible for their work. DISTRICT
will deal directly with and make all payments to CONTRACTOR.
STOP NOTICES
24.Additional Costs. Pursuant to Civil Code Section 9358, upon receipt of a stopnotice, DISTRICT shall withhold from payment to CONTRACTOR sufficient funds due, or to
become due, to pay the claim stated in the stop notice and provide for DISTRICT’s reasonable
costs of litigation. One hundred twenty-five percent (125%) of the amount of the claim stated in the stop notice shall be a reasonable amount to withhold. In addition to the remedies authorized
by law, CONTRACTOR shall reimburse DISTRICT for administrative expenses incurred in processing Notices to Withhold, Stop Notices, or similar legal documents arising out of a failure of CONTRACTOR to pay for labor or materials. Said obligation shall be provided for in
CONTRACTOR’s payment bond. DISTRICT shall have the right to deduct any such expenses from amounts due or to become due to CONTRACTOR under this AGREEMENT.
COMPLETION
25.CONTRACTOR’S Waiver. CONTRACTOR agrees to execute a Final Close Out
Agreement and Release of All Claims on DISTRICT’s form (attached). The execution by CONTRACTOR of the Final Close Out Agreement and Release of All Claims shall constitute a
waiver of all claims against DISTRICT under or arising out of this AGREEMENT unless otherwise
stated in said document.
26. Guarantees. CONTRACTOR shall, and hereby does, guarantee all work for a
period of one (1) year after the date of acceptance of the work by the DISTRICT and shall repair and replace any and all such work, together with any other work which may be displaced in so
doing, that may prove defective in workmanship and/or materials within the one (1) year period
from date of acceptance, without expense whatsoever to the DISTRICT, ordinary wear and tear and usual abuse or neglect excepted. In the event of failure to comply with the aforementioned
conditions within five (5) days after being notified in writing, the DISTRICT is hereby authorized
to proceed to have the defects repaired and made good at the expense of the CONTRACTOR, who shall pay the cost and charges therefor immediately on demand. This guarantee shall be in
addition to any manufacturer or specific guarantees that may be required. CONTRACTOR shall provide those manufacturer and specific guarantees before CONTRACTOR may claim entitlement to final payment.
INDEMNIFICATION
8
27. Indemnity. CONTRACTOR shall indemnify, defend with legal counsel approved
by DISTRICT, and hold harmless DISTRICT, and its officers, officials, employees, and volunteers,
from and against all liability, loss, damage, expense, and cost (including without limitation reasonable legal counsel fees, expert fees, and all other costs and fees of litigation) of every
nature arising out of or in connection with CONTRACTOR’s negligence, recklessness or willful misconduct in the performance of work hereunder, or its failure to comply with any of its obligations contained in this AGREEMENT, except such loss or damage which is caused by the
sole or active negligence or willful misconduct of the DISTRICT. Should conflict of interest principles preclude a single legal counsel from representing both DISTRICT and CONTRACTOR, or should DISTRICT otherwise find CONTRACTOR’s legal counsel unacceptable, then
CONTRACTOR shall reimburse the DISTRICT its costs of defense, including without limitation reasonable legal counsel fees, expert fees, and all other costs and fees of litigation. The
CONTRACTOR shall promptly pay any final judgment rendered against the DISTRICT and its
officers, officials, employees, and volunteers with respect to claims determined by a trier of fact to have been the result of the CONTRACTOR’s negligent, reckless or wrongful performance. It
is expressly understood and agreed that the foregoing provisions are intended to be as broad and
inclusive as is permitted by the law of the State of California and will survive termination of this AGREEMENT.
CONTRACTOR’s obligations under this Section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment,
civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of DISTRICT under any provision of this AGREEMENT, CONTRACTOR shall not be required to indemnify and hold harmless DISTRICT for liability
attributable to the active negligence of DISTRICT, provided such active negligence is determined by agreement between the parties or by the findings of a court of competent jurisdiction. In instances where DISTRICT is shown to have been actively negligent and where DISTRICT’s
active negligence accounts for only a percentage of the liability involved, the obligation of CONTRACTOR will be for that entire portion or percentage of liability not attributable to the active negligence of DISTRICT.
Notwithstanding any limits provided for indemnification, CONTRACTOR’s duty to defend
is broader. CONTRACTOR agrees to provide DISTRICT with a defense, with counsel reasonably
acceptable to DISTRICT, or pay DISTRICT’s costs of defense upon service of any complaint, petition or other pleading that requires DISTRICT to defend itself in any proceeding arising out of
the work described in this AGREEMENT. Said obligation shall not extend to disputes between
CONTRACTOR and DISTRICT.
INSURANCE
28. Insurance. Without limiting CONTRACTOR’s indemnification of DISTRICT, and
prior to commencement of work, CONTRACTOR shall obtain, provide, and maintain at its own
expense during the term of this AGREEMENT policies of insurance of the types and amounts described below and in a form satisfactory to DISTRICT.
General liability insurance. CONTRACTOR shall maintain commercial general liability
insurance with coverage at least as broad as Insurance Services Office Form CG 00 01, in an
amount not less than $1,000,000.00 per occurrence, $2,000,000.00 general aggregate, for bodily injury, personal injury, and property damage, including, without limitation, blanket contractual
liability, and a $2,000,000.00 completed operations aggregate.
9
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance at least as broad as Insurance Services Office Form CA 00 01 covering bodily injury and property
damage for all activities of the CONTRACTOR arising out of or in connection with work to be
performed under this AGREEMENT, including coverage for any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000.00 combined single limit for each accident.
Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an
umbrella or excess liability insurance policy with limits of not less than $4,000,000.00 that will
provide bodily injury, personal injury, and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability and employer’s liability. Such policy or policies shall include the following terms and conditions:
A drop down feature requiring the policy to respond in the event that any primary insurance
that would otherwise have applied proves to be uncollectable in whole or in part for any
reason;
Pay on behalf of wording as opposed to reimbursement;
Concurrency of effective dates with primary policies; and
Policies shall “follow form” to the underlying primary policies.
Insureds under primary policies shall also be insureds under the umbrella or excess
policies.
Workers’ compensation insurance. CONTRACTOR shall maintain Workers’
Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000.00) for CONTRACTOR’s employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each
subcontractor to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with the laws of the State of California, Section 3700 of the Labor Code, for all of the subcontractor’s employees.
CONTRACTOR shall submit to DISTRICT, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of DISTRICT and its officers, agents, employees,
and volunteers.
Builder’s risk insurance. Upon commencement of construction and with approval of CITY, CONTRACTOR shall obtain and maintain builder’s risk insurance as specified below.
The named insureds shall be CONTRACTOR, all subcontractors (excluding those solely responsible for design work) of any tier, suppliers, and CITY and its officers, officials, employees,
and agents. CONTRACTOR shall not be required to maintain property insurance for any portion of the PROJECT following transfer of control thereof to CITY.
Policy shall be .provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any ensuing loss from faulty workmanship, nonconforming work, or omission or deficiency in design
or specifications; (2) coverage against machinery accidents and operational testing; (3) coverage for removal of debris and insuring the buildings, structures, machinery, equipment, materials,
facilities, fixtures, and all other properties constituting a part of the PROJECT; (4) transit coverage,
including ocean marine coverage (unless insured by the supplier), with sub-limits sufficient to insure the full replacement value of any key equipment item; and (5) coverage with sub-limits
sufficient to insure the full replacement value of any property or equipment stored either on or off
the site. Such insurance shall be on a form acceptable to CITY to ensure adequacy of terms and
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sub-limits.
Proof of insurance. CONTRACTOR shall provide certificates of insurance to DISTRICT
as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsement must be
approved by DISTRICT’s risk manager prior to commencement of performance. Current certification of insurance shall be kept on file with DISTRICT at all times during the term of this AGREEMENT. DISTRICT reserves the right to require complete, certified copies of all required
insurance policies at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of the
AGREEMENT insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by CONTRACTOR or his
agents, representatives, employees, or subcontractors. CONTRACTOR must maintain general
liability and umbrella or excess liability insurance for as long as there is a statutory exposure to completed operations claims. DISTRICT and its officers, officials, employees, and agents shall
continue as additional insureds under such policies.
DISTRICT’s rights of enforcement. In the event any policy of insurance required under
this AGREEMENT does not comply with these requirements or is canceled and not replaced, DISTRICT has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by DISTRICT will be promptly reimbursed by CONTRACTOR or DISTRICT will
withhold amounts sufficient to pay premium from CONTRACTOR payments. In the alternative, DISTRICT may cancel this AGREEMENT.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category
Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the DISTRICT’s Counsel.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this AGREEMENT shall be endorsed to waive subrogation against DISTRICT and its elected or
appointed officers, agents, officials, employees, and volunteers or shall specifically allow
CONTRACTOR or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of
recovery against DISTRICT and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of AGREEMENT provisions (non estoppel). CONTRACTOR acknowledges and agrees that any actual or alleged failure on the part of the DISTRICT to inform CONTRACTOR of non-compliance with any requirement imposes no additional obligations on the
DISTRICT, nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker
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and insurers to provide DISTRICT with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
Additional insured status. General liability policies shall provide or be endorsed to
provide that DISTRICT and its officers, officials, employees, and agents shall be additional insureds under such policies. This provision shall also apply to any excess liability policies.
DISTRICT’s right to revise requirements. The DISTRICT reserves the right, at any time during the term of the AGREEMENT, to change the amounts and types of insurance required by giving the CONTRACTOR a ninety (90)-day advance written notice of such change. If such
change results in substantial additional cost to the CONTRACTOR, the DISTRICT and CONTRACTOR may renegotiate CONTRACTOR’s compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by DISTRICT. DISTRICT reserves the right to require that self-insured retentions be eliminated,
lowered or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by DISTRICT.
Timely notice of claims. CONTRACTOR shall give DISTRICT prompt and timely notice of claims made or suits instituted that arise out of or result from CONTRACTOR’s performance under this AGREEMENT, and that involve or may involve coverage under any of the required
liability policies.
Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance which in his/her/its own judgment may be necessary for its proper protection and prosecution of the work.
29.Workers’ Compensation.
A. CONTRACTOR shall carry Workers’ Compensation Insurance, and require all
subcontractors to carry Workers’ Compensation Insurance, as required by the Labor Code of the State of California. CONTRACTOR, by executing this AGREEMENT, hereby certifies:
“I am aware of 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, and I will comply with such provisions before commencing the performance of the work of this AGREEMENT.”
B. CONTRACTOR acknowledges that it is unlawful and a crime to intentionally make false statements about employees that misclassify their job duties to obtain lesser premium costs
or for other improper purposes. CONTRACTOR agrees that if it makes false statements about
its employees for the purpose of obtaining lower workers’ compensation premiums or for other unlawful purposes, it shall be considered a material breach of this AGREEMENT.
30. Bonds. Within the time period set forth in the CONTRACT DOCUMENTS and
prior to commencing the work on the PROJECT, the CONTRACTOR shall file with the DISTRICT
a good and sufficient labor and material payment bond (Payment Bond) and a performance bond (Performance Bond) in the amount of one hundred percent (100%) of the Contract Sum covering
performance of the work other than the professional design services portion of the work. The
Performance Bond and Payment Bond shall be in the form required by the CONTRACT
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DOCUMENTS. The amounts of the Payment Bond and Performance Bond shall be increased as, when, and in the amount of any Change Orders that are executed increasing the Contract
Sum, the CONTRACTOR shall, upon request by the DISTRICT, provide evidence of such
increases. Should the Payment Bond or Performance Bond or any Surety on such bond become or be determined by the DISTRICT to be insufficient, it shall be replaced within ten (10) days by
a bond that fully complies with the requirements of this Section. No further payments to the CONTRACTOR for the work performed shall be made or due until the CONTRACTOR has fully complied with the requirements of this Section.
Duration. The Payment Bond shall remain in effect until acceptance of the work by the
DISTRICT and payment of all stop notices and claims by the CONTRACTOR or the
subcontractors, of any tier, have been satisfied. The Performance Bond shall remain in effect and assure faithful performance of all the CONTRACTOR’s obligations under the CONTRACT
DOCUMENTS, including, without limitation, all obligations that survive final completion or
termination, such as, but not limited to, CONTRACTOR’s warranty, commissioning, and indemnity obligations.
Surety. At the time the AGREEMENT is signed, and at all times thereafter until final payment has been made by the DISTRICT, the Surety on the Payment Bond shall be an Admitted
Surety, and the Surety on the Performance Bond shall be a licensed Surety in good standing with the California Department of Insurance and have an A.M. Best’s Insurance Rating of not less than A-: VI.
Premiums. The premiums for all bonds are included in the Contract Sum and shall be
paid by the CONTRACTOR.
Obligee. The Payment Bond and Performance Bond shall each name the DISTRICT as
obligee. All bonds purchased by the subcontractors shall name the CONTRACTOR and the
DISTRICT as dual obligees.
No exoneration. Changes, Change Orders, Unilateral Change Orders, Field Orders,
modifications, and adjustments to the Contract Sum or completion date shall in no way release or exonerate the CONTRACTOR or its Surety from their obligations, and notice thereof shall be
waived by the Surety. The foregoing provision shall be included in the terms of the Payment
Bond, Performance Bond, and any bonds obtained by the subcontractors.
Communications. The DISTRICT shall have the right to communicate with the CONTRACTOR’s Sureties with respect to matters that are related to the CONTRACTOR’s performance of its obligations under the CONTRACT DOCUMENTS. CONTRACTOR shall be
provided with a copy of all such written communications. Such communications shall not create, or be interpreted as creating, any contractual relationship between the DISTRICT and the Surety.
No limitation. The requirements of this Section pertaining to the Performance Bond and the Payment Bond shall be without limitation to any other obligations the CONTRACTOR may have under applicable law to provide bonding for the benefit of and to assure payment to the
subcontractors or subconsultants performing the work for the PROJECT.
TERMINATION
31. Termination.
A. If CONTRACTOR should fail to comply with any of the provisions hereof, in the
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event CONTRACTOR should become the subject of a proceeding under state or federal law for relief of debtors, or if CONTRACTOR makes an assignment for the benefit of creditors, DISTRICT
shall have the right to hold CONTRACTOR in default and cancel this AGREEMENT in whole or
in part.
B. Should CONTRACTOR, at any time during the progress of the work, refuse or neglect to supply sufficient material or labor, or fail in compliance with any provision of this AGREEMENT, DISTRICT shall have the right, without prejudice to any other right or remedy it
may have, to provide such materials and labor, or make good such deficiencies as DISTRICT may deem expedient after three (3) days notice in writing, delivered or mailed to CONTRACTOR at his last address on file with DISTRICT, and CONTRACTOR shall be liable for the cost and
expense thereof which may be deducted by DISTRICT from any money due or that may become due CONTRACTOR.
C. Without limiting any rights which DISTRICT may have by reason of any default by CONTRACTOR hereunder, DISTRICT reserves the right to terminate this AGREEMENT in whole
or in part at its convenience. In such event DISTRICT shall compensate CONTRACTOR, subject
to deduction for previous payments and authorized deductions, by: (i) reimbursing CONTRACTOR for all actual expenditures and costs incurred in performing under this
AGREEMENT, (ii) reimbursing CONTRACTOR for all expenditures made and costs incurred with DISTRICT’s prior written approval in settling or discharging outstanding commitments entered into by CONTRACTOR in performing under this AGREEMENT, and (iii) paying CONTRACTOR
as a profit, insofar as a profit is realized hereunder, an amount equal to the profit on the entire AGREEMENT estimated at the time of termination, multiplied by the percentage of completion of the work. In no event, however, will the compensation to CONTRACTOR exceed the total
AGREEMENT price less payments previously made and less the AGREEMENT price of work not terminated. Upon receipt of any notice of termination, CONTRACTOR shall, unless the notice otherwise directs, (i) immediately discontinue the work and the placing of all orders and
subcontracts in connection with this AGREEMENT, (ii) immediately cancel all existing orders and subcontracts made hereunder, and (iii) immediately transfer to DISTRICT all materials, supplies,
work-in-process, appliances, facilities, equipment, machinery, and tools acquired by
CONTRACTOR in connection with the performance of this AGREEMENT.
CLAIM RESOLUTION
32.Resolution of Claims. For all claims that are Three Hundred Seventy-FiveThousand Dollars ($375,000.00) or less, the provisions of Public Contracts Code Sections 20104
et seq. (Article 1.5 - Resolution of Construction Claims) shall be followed.
33.Notice to Contractor of Claims. DISTRICT shall provide notice to
CONTRACTOR upon receipt of any third-party claim related to the AGREEMENT.
CONTRACT DOCUMENTS AND INTERPRETATION
34.(a) Other Documents Included. It is further agreed by the parties hereto that the
following documents are incorporated herein by reference and are to be read and construed together as the full, complete, and integrated terms of this AGREEMENT and, collectively with
this AGREEMENT, may be referred to as the CONTRACT DOCUMENTS:
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A. Request for Proposal B. Scope of Services
C. Bid Format
D. Construction Specifications E. District Request for Change Order/Change Order
F. Notice to Proceed G. Labor and Materials Bond H. Performance Bond
I. Final Closeout Agreement
(b) Interpretation of Incorporated Documents. In the event of any conflict, inconsistency or incongruity between the provisions of this AGREEMENT and the provisions of any document listed in Subsection (a) above, the provisions of this
AGREEMENT shall prevail unless a contrary intent is shown.
This AGREEMENT shall be interpreted as though it had been drafted by the DISTRICT
and the CONTRACTOR equally. This AGREEMENT shall be interpreted according to the laws of the State of California.
35.Integration/No Oral Modifications. This AGREEMENT integrates allunderstandings of the parties. Any amendment to this AGREEMENT must be made in writing
and signed by the parties with legal authority to execute the same. CONTRACTOR is aware that
DISTRICT is a special district and that, pursuant to Health and Safety Code Section 6487, contract amendments may only be entered into by compliance with those formalities. Notwithstanding the
above, requests for additional time or compensation may be made by following the procedures
and using the form provided for in Section 21 of this AGREEMENT.
36.Effect of Invalidity. The invalidity in whole or in part of any provisions hereof shallnot affect the validity of any other provision.
MISCELLANEOUS
37. Discrimination, Minorities, Aliens. The CONTRACTOR shall not discriminate
nor allow its employees, agents, principals, or subcontractors to discriminate against any employee or applicant for employment on the basis of race, religious creed, national origin, or sex. CONTRACTOR shall take affirmative steps to hire qualified minority individuals when job
opportunities occur and utilize local business firms when possible and when consistent with California Constitution Article 1, Section 31 (a) [Proposition 209].
38.Equal Employment Opportunity. CONTRACTOR shall comply with all
provisions of Executive Order 11246, entitled “Equal Employment Opportunity” and amended by
Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR part 60).
39.Drug-Free Work. CONTRACTOR agrees to provide a drug-free workplace in
accordance with 24 CFR part 24, sub-part F. Under 24 CFR part 24, sub-part F, the
CONTRACTOR will provide certification in writing that it will provide a drug-free workplace by:
(a) Publicizing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace, and specifying the action it will take against employees for
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violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees about:
1.Degrees of drug abuse in the workplace;
2.The policy of maintaining a drug-free workplace;3.Any available drug counseling, rehabilitation, and employee assistanceprograms; and
4.The penalties which may be imposed on employees for drug abuse violationsoccurring in the workplace.
(c) Making it a requirement that every employee to be engaged in the performance of the AGREEMENT be given a copy of the statement required by Subsection (a);
(d) Notifying employees in the statement required by Subsection (a) that as a condition of employment under the AGREEMENT the employee will:
1.Abide by the term of the statement; and2.Notify the employer in writing of any conviction for a violation of a criminal drug
statute occurring in the workplace no later than five (5) calendar days aftersuch conviction.
(e) Notifying DISTRICT in writing within ten (10) calendar days after receiving notice under Subsection (d)(2) from an employee or otherwise receiving actual notice of such conviction. Employer of said convicted employee must provide notice,
including conviction title, to the DISTRICT;
(f) Taking one of the following actions, within thirty (30) calendar days of receiving
notice under Subsection (d)(2), with respect to any employee who is so convicted:
1.Taking appropriate action against such an employee, up to and including
termination, consistent with the requirements of the Rehabilitation Act of 1973,as amended; or
2.Requiring such employee to participate satisfactorily in a drug abuse
assistance or rehabilitation program approved for such purposes by a federal,state, or local health, law enforcement, or other appropriate agency.
(g) Making a good faith effort to continue to maintain a drug-free workplace through implementation of Sections (a), (b), (c), (d), (e), and (f).
40.Permits. The CONTRACTOR shall obtain from the DISTRICT, County, City,
State, or other responsible public agencies all licenses and permits, and pay all fees related
thereto, necessary to complete the job.
41. Assignment. No assignment by the CONTRACTOR of this AGREEMENT or any
part hereof, or of funds to be received hereunder, will be recognized by the DISTRICT unless such assignment has had prior written approval and consent of the DISTRICT and the Surety.
42.Safety and Site Condition. CONTRACTOR shall perform all operations with dueregard for safety and in strict compliance with all applicable laws relating thereto. It shall be
CONTRACTOR’s responsibility to keep the site in a clean, neat, and orderly condition. It shall
also be CONTRACTOR’s duty to dust-palliate all working areas and access routes, if applicable.
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All operations shall be conducted by CONTRACTOR so that no fire hazards are created.
43.Utility Location. DISTRICT acknowledges its responsibilities with respect to
locating facilities pursuant to California Government Code Section 4215.
44. Trenching. If this AGREEMENT involves digging trenches or other excavationsthat extend deeper than four (4) feet below the surface, CONTRACTOR shall promptly, and before the following conditions are disturbed, notify the DISTRICT in writing, of any:
(a) Material that the CONTRACTOR believes may be material that is hazardous waste, as defined in Section 25117 of the Health and Safety Code that is required
to be removed to a Class I, Class II or Class III disposal site in accordance with provisions of existing law.
(b) Subsurface or latent physical conditions at the site differing from those indicated.
(c) Unknown physical conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the AGREEMENT.
The DISTRICT shall promptly investigate the conditions, and if it finds that the conditions do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the
CONTRACTOR’s cost of, or the time required for, performance of any part of the work shall issue a change order in accordance with the procedures described in this AGREEMENT.
In the event that a dispute arises between the DISTRICT and the CONTRACTOR as to whether the conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the CONTRACTOR’s cost of, or time required for, performance of any part of the work,
the CONTRACTOR shall not be excused from any scheduled completion date provided for by the AGREEMENT but shall proceed with all work to be performed under the AGREEMENT. The
CONTRACTOR shall retain any and all rights provided either by this AGREEMENT or by law
which pertain to the resolution of disputes and protests between the contracting parties provided that CONTRACTOR complies with Section 21 when asserting such claim.
45.Trench Protection. Detailed plan shall be submitted by the contractor showingshoring, bracing, sloping or other provisions to be made for worker protection the hazard of caving
ground in accordance with Labor Code Section 6705. The Board of Directors shall approve said
plan unless it has delegated that authority in advance to a registered civil or structural engineer. If such plan varies from the shoring system standards, the plan shall be prepared by a registered
civil or structural engineer.
Notices. The parties hereto agree that all formal notices required by this AGREEMENT
may be provided to the following persons at the following addresses by sending the same
by certified or registered mail as follows:
DISTRICT: Costa Mesa Sanitary District 628 W. 19th Street Costa Mesa, CA 92627
CONTRACTOR: Kinney Construction, Inc.
830 W. Fletcher Avenue
Orange, CA 92865
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Attn: James H. Kinney
46. Gratuities. CONTRACTOR warrants that neither it nor any of its employees,
agents, or representatives has offered or given any gratuities to DISTRICT’s employees, agents or representatives with a view toward securing this AGREEMENT or securing favorable treatment
with respect thereto.
47.Conflict of Interest. CONTRACTOR warrants that he has no blood or marriage
relationship with, and that it is not in any way associated with, any architect, engineer or other preparer of the plans and specifications for this PROJECT.
48.Copeland “Anti-Kickback” Act. If applicable to this AGREEMENT,CONTRACTOR and its subcontractors shall comply with the provisions of the Copeland “Anti-
Kickback” Act (18 U.S.C. Section 874), as supplemented in Department of Labor regulations,
which Act provides that each contractor shall be prohibited from including, by any means, any person employed in the construction, completion or repair of any public work to give up any part
of the compensation to which he is otherwise entitled.
49.Attorney’s Fees. In any action or proceeding brought by either party against the
other party arising out of or in any way connected to this AGREEMENT, or where any provision
hereof is validly asserted as a defense, the parties shall bear their own attorney’s fees, costs, and expenses. Nothing in this provision shall excuse CONTRACTOR’s duty to provide DISTRICT
with a defense at CONTRACTOR’s cost when DISTRICT receives a complaint, petition or other pleading from a third party requiring DISTRICT to defend itself. Notwithstanding the foregoing, costs and attorney’s fees shall be available pursuant to Code of Civil Procedure Section 386.6 in
connection with an interpleader.
50.Assignment of Rights. Pursuant to Section 7103.5 of the Public Contract Code,in entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the CONTRACTOR or subcontractor offers and agrees to
assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 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 the subcontract. This assignment shall be made and become effective at the time the awarding
body tenders final payment to the CONTRACTOR, without further acknowledgment by the parties.
51.SCAQMD and CARB Compliance. CONTRACTOR agrees to comply with all
South Coast Air Quality Management District (SCAQMD) and California Air Resources Board
(CARB) requirements, including, but not limited to, compliance with CARB Regulations limiting idling of self-propelled diesel-fueled on-road and off-road vehicles and equipment (25 HP and up)
to no more than five (5) consecutive minutes as specified in Title 13 of the California Code of
Regulations, section 2449 (d)(3), Idling.
52.Mined Construction Materials. CONTRACTOR shall not purchase minedconstruction material except from a mining operation that is currently identified in the list published pursuant to subdivision (b) of Section 2717 of the Public Resources Code. Refer to the current
3098 list for qualified mining operations at www.consrv.ca.gov/OMR/ab_3098_list/current_list.
IN WITNESS WHEREOF, the parties hereto have entered into this AGREEMENT the date
and year first above written.
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ATTEST: COSTA MESA SANITARY DISTRICT
_________________________________ __________________________________ President
APPROVED AS TO FORM: __________________________________
Secretary
__________________________________ CONTRACTOR
_________________________________ District Counsel Name: __________________________________
APPROVED AS TO CONTENT: Address: __________________________________
_________________________________ District Manager __________________________________
By: __________________________________
Kinney Construction
Kristy L. Collins, CFO
830 W. Fletcher Avenue
Costa Mesa, CA 92865
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STATE OF CALIFORNIA) (INDIVIDUAL)/(CORPORATION) ss. COUNTY OF )
On , before me, the undersigned, a Notary Public in and for said state,
personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_____________________________
(Notary Public)