Contract - Southwest - 2011-12-19 CONTRACT
THIS AGREEMENT is made and entered into this 19th day of Dec 2011 by and
between the COSTA MESA SANITARY DISTRICT, hereinafter referred to as 'DISTRICT' and,
Southwest Pipeline and Trenchless Corporation,a California corporation, 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:
1 Scope of the Work. That CONTRACTOR shall perform all the work and shall
provide and furnish all the labor materials, necessary tools, expendable equipment, and all
utility and transportation services required to construct:
#164 SEWER ROOT CONTROL PROGRAM
2. 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 Specifications for
#164 SEWER ROOT CONTROL PROGRAM, and CONTRACTOR agrees to do
everything required by this Contract and the Contract Documents including the plans and
specifications and any general conditions.
All labor materials, tools, equipment and services shall be furnished on work performed,
and under the direction, administration and subject to the approval of DISTRICT or its authorized
representatives.
CONTRACTOR warrants that it will not purchase mined construction material for this
PROJECT 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_IistJcurrent_list.
3. Time of Completion. CONTRACTOR agrees to commence the work to be performed
under this Contract within five (5) days of receipt of the 'Notice to Proceed' and to diligently
prosecute the work to completion before the expiration of FORTY FIVE (45) WORKING DAYS
from the date of commencement. 'Working days' means all calendar days except Saturdays,
Sundays, and legal holidays.
4. Time of the Essence. Time is of the essence of this Contract.
5. Liquidated Damages/Delay Damages. It is agreed by the parties 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- and it is therefore
agreed the CONTRACTOR will pay to the DISTRICT the sum of TWO HUNDRED FIFTY and
00/100 Dollars ($250.00) per calendar day for each and every day of delay in finishing the work in
excess of the number of days prescribed in paragraph 3 and the CONTRACTOR agrees to pay said
liquidated damages herein provided for and further agrees that the DISTRICT may deduct the
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amount thereof from any monies due or that may become due the CONTRACTOR hereunder
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 for the completion of the work 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, provided CONTRACTOR submits timely notification
and a written Request for Change Order as required herein.
The CONTRACTOR shall within ten(10)days from the beginning of any such delay(unless
the DISTRICT shall grant a further period of time prior to the date of final settlement of the Contract)
notify the District Engineer in writing of the cause of the delay and the District Engineer shall
extend the time for completing the work if in the District Engineer's judgment the cause so merits.
The District Engineer's determination on this matter shall be final and conclusive on the parties
hereto. CONTRACTOR shall also be required to submit a written Request for Change Order to
District Engineer within fifteen (15)days of the date of such delay No adjustment shall be allowed
for such delay unless strict compliance with this contractual provision is effected.CONTRACTOR's
remedy shall be limited to the extra days granted and to any damages that he may be entitled to
using the formula agreed to by the parties for all damages as provided in Paragraph 28.
6. The 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: Ninety nine thousand four
hundred dollars ($99,400.00).
7 Progress Payments. Prior to the fifteenth day of the month next following the
commencement of the work,there shall be paid to CONTRACTOR a sum equal to 90 percent of the
value of the work completed since the commencement of the work as determined by the District
Engineer and thereafter prior to the fifteenth day of each successive month as the work progresses.
CONTRACTOR shall be paid such sum as will bring the payments up each month to 90 percent of
the value of the work completed since the commencement of the work as determined by the District
Engineer less all previous payments, provided that CONTRACTOR submits his request for
payment prior to the last Wednesday of each preceding month. DISTRICT shall make the final
payment,if unencumbered,or any part thereof unencumbered,35 days after the acceptance of the
work and the filing of a Notice of Completion. Payments shall be made on demands drawn in the
manner required by law accompanied by a certificate signed by the District Engineer stating that
the work for which payment is demanded has been performed in accordance with the terms of the
Contract, and that the amount stated in the certificate is due under the terms of the Contract.
Partial payments on the Contract price shall not be considered as an acceptance of any part of the
work.
8. 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.
9. Retention Securities. Pursuant to California Contract Code Section 22300
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 Contract.
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10. Specifications. The Standard Specifications for Public Works Construction, also
known as the Greenbook, latest edition,shall be controlling unless a different specification is called
out in the Contact Documents, including the Costa Mesa Sanitary District's Standard Plans and
Specifications for the Construction of Sanitary Sewers and the SEWER ROOT CONTROL
PROGRAM.
11 Change Orders.Change order requests shall be submitted to the District Engineer
in writing who shall have discretion to determine the merit of the change order request.The District
Engineer may approve or disapprove change orders in his discretion except that any change order
resulting in an increase of the Contract price shall be co-signed by the District Manager and/or
approved by the Board of Directors. No amendments, modifications,or waivers of Contract terms
or the Contract Documents,including additional compensation for extra work,will be allowed absent
a written Change Order signed by both parties.
12. Prevailing Wage Rates. DISTRICT has ascertained the general prevailing rate of
per diem wages and the general prevailing rate for legal holidays and overtime work in the locality
in which the work is to be performed for each craft or type of work needed to execute this Contract,
and the same has been placed on file with the District Clerk at the District's principal office. Said per
diem wages can be obtained on the Internet at http://www dir.ca.gov/dlsr/DPreWageDetermination
htm. 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 sections 1773.1 and
1773.8 of the Labor Code of the State of California.
13. Discrimination, Minorities, Aliens. The CONTRACTOR shall not unlawfully
discriminate nor allow its employees,agents, principals,or subcontractors to unlawfully discriminate
against any employee or applicant for employment on the basis of race, religious creed, national
origin or sex.
14. Compliance with Davis-Bacon Act. This provision does not apply to this Contract.
15. Payroll Records. The provisions of section 1776 of the Labor Code of the State of
California regarding the preparation, maintenance and filing of payroll records are applicable to this
Contract. Specifically each CONTRACTOR and subcontractor shall keep an accurate payroll
record, 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 or worker employed by him in connection with the public work. THE
CONTRACTOR'S AND SUBCONTRACTOR'S PAYROLL RECORDS SHALL BE SUBMITTED TO
THE DISTRICT ENGINEER FOR REVIEW ON A WEEKLY BASIS. THE CONTRACTOR SHALL
BE RESPONSIBLE FOR SUBMITTAL OF SUB-CONTRACTOR'S PAYROLL RECORDS.
16. Penalty CONTRACTOR shall, as a penalty to the DISTRICT forfeit up to $50.00
for each calendar day or portion thereof for each workman paid (either by him or any subcontractor
under him)less than the prevailing rate set forth herein on the work provided for in this Contract,all
in accordance with section 1775 of the Labor Code of the State of California.
17 Apprentices. If applicable, the provisions of Labor Code Section 1777.5 requiring
the use of apprentices in certain ratios to journeymen are hereby imposed upon CONTRACTOR.
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18. Legal Day's Work. In the performance of this Contract, 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 unless the CONTRACTOR complies will all applicable
Labor laws. CONTRACTOR shall conform to Article 3, Chapter 1 Part 7 (section 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$25.00 for each workman employed in the execution of this
Contract by the CONTRACTOR or any subcontractor for each calendar day during which any
workman is required or permitted to labor more than eight(8) hours in any one calendar day and
forty (40) hours in any one week in violation of said article.
19. Subcontracting. CONTRACTOR acknowledges that he is aware of the provisions
of the 'Subletting and Subcontracting Fair Practices Act' (Public Contract Code Section 4100 et
seq.)and that he agrees to comply with all applicable provisions thereof. If any part of the work to
be done under this Contract 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 Contract. Upon
request, certified copies of any or all subcontracts shall be furnished to the District Engineer or
DISTRICT The subcontracting of any or all of the work to be done will in no way relieve the
CONTRACTOR of any part of his responsibility under the Contract. Breach of any of the above
provisions will be considered a violation of the Contract, and the DISTRICT may cancel the
Contract, assess the CONTRACTOR a penalty of not more than 10 percent of the subcontract
involved, or cancel the Contract and assess the penalty
All persons engaged in the work, including subcontractors,will be considered employees of
the CONTRACTOR. He will be held responsible for their work. The DISTRICT will deal directly
with and make all payments to the CONTRACTOR.
20. Workers' Compensation. 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 Contract, 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 Contract.
21 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 violation of such prohibition;
(b). Establish 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 assistance programs;
4 The penalties which may be imposed on employees for drug abuse violations
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occurring in the workplace.
(c). Making it a requirement that every employee to be engaged in the performance of the
Contract be given a copy of the statement required by paragraph (a);
(d). Notifying employees in the statement required by paragraph (a)that as a condition of
employment under the Contract the employee will
1 Abide by the term of the statement; and
2. 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 after such
conviction.
(e). Notify the DISTRICT in writing,within ten(10)calendar days after receiving notice under
subparagraph (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 subparagraph (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 paragraphs (a), (b), (c), (d), (e) and (f).
22. Bonds. CONTRACTOR shall, prior to the execution of the Contract,furnish bonds
approved by DISTRICT one in the amount of one hundred percent(100%)of the Contract price,to
guarantee the faithful performance of the work,and the other in the amount of one hundred percent
(100%)of the Contract price to guarantee payment of all claims for labor and materials furnished.
This Contract shall not become effective until such bonds are supplied to and approved by
DISTRICT All bonds shall be issued by an admitted surety insurer and the DISTRICT reserves the
right to object to any such surety in accordance with Code of Civil Procedure Section 995.660.
23. CONTRACTOR'S Affidavit. After the completion of the work contemplated by this
Contract, CONTRACTOR shall file with the District Engineer his affidavit stating that all workmen
and persons employed, all firms supplying materials, and all subcontractors upon the project have
been paid in full, and that there are no claims outstanding against the project for either labor or
material,except certain items, if any to be set forth in an affidavit covering disputed claims,or items
in connection with a Notice to Withhold,which have been filed under the provisions of the statutes
of the State of California.
24. CONTRACTOR'S Waiver CONTRACTOR agrees to execute a Final Close Out
Agreement and Release of All Claims. 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 Contract unless otherwise stated in said document.
25. Notice to Proceed. No work, services,material or equipment shall be performed or
furnished under this Contract unless and until a 'Notice to Proceed' has been given to the
CONTRACTOR by the District Engineer and all bonds and certificates of insurance required
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pursuant hereto have been furnished to and approved by DISTRICT
26. Termination.
A. If CONTRACTOR should fail to comply with any of the provisions hereof, or in
the 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 Contract 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 to comply with any provision of this Contract,
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 that may be 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 Contract in whole or in
part at its convenience. In such event DISTRICT shall compensate CONTRACTOR, subject to
deduction for previous payments(i)by reimbursing CONTRACTOR for all actual expenditures and
costs incurred in performing under this Contract (ii) by 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
Contract and (iii) by paying CONTRACTOR as a profit, insofar as a profit is realized hereunder an
amount equal to the profit on the entire Contract 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 Contract price less payments previously made and less the
Contract 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 Contract, (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 Contract.
27 CONTRACTOR'S Independent Investigation. 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 Contract,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 Engineer and/or DISTRICT for purposes of letting this Contract 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 the Contract Documents. Nor will such reasons be accepted as a
basis for any claims whatsoever for extra compensation or for an extension of time.
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28. Damages/Extra Work Compensation. The parties have agreed to modify the
formula for damages set forth in the Standard Specifications for Public Works Construction. The
parties agree that the damage formula shall be used to measure all of CONTRACTOR's damages
or extra work required by this job. 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$5000)
Subcontracted work 5% (work in excess of first$5000)
Specialty Subcontracting
(required by extra work) 5% (Provided at least three
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 paragraph.
CONTR , s
Initials
Other Documents Included. It is further agreed by the parties hereto that the
following documents are incorporated into this Contract by reference and are to be read and
construed together as the full, complete and integrated terms of this Contract:
A. Notice Inviting Bids
B. Supplementary Bid Addenda or Bulletins, if applicable
C Proposal Packet
D Standard Specifications for Public Works Construction 'Greenbook, latest
edition
E. Costa Mesa Sanitary District Standard Plans and Specifications for the
Construction of Sanitary Sewers
F Construction Plans and Specifications for #164 SEWER ROOT
CONTROL PROGRAM
G. Standard Drawings (Costa Mesa Sanitary District Drawings and City of
Costa Mesa Drawings)
H. Soils Report
City of Costa Mesa Encroachment Permit
J. Faithful Performance Bond
K. Payment Bond
L. Approved Change Orders, if applicable
M. Contractor's Affidavit
N. Final Closeout Agreement and Release of All Claims
The documents listed in this Paragraph, including this Contract, shall be known and referred
to collectively as the 'Contract Documents.'
30. Interpretation. In the event of any conflict,inconsistency or incongruity between the
provisions of this Contract and the provisions of any of the Contract Document(s) referenced in
Paragraph 29 hereof, or amendments thereto, the provisions of this Contract shall control in all
respects.
31 Attorney's Fees. If any action at law or in equity is necessary to enforce or interpret
the terms of this agreement, the prevailing party shall be entitled to reasonable attorney's fees,
costs and necessary disbursements in addition to any other relief to which he may be entitled. If
any action is brought against the CONTRACTOR or any subcontractor to enforce a Stop Notice or
Notice to Withhold, which names the DISTRICT as a party to said action, DISTRICT shall be
entitled to reasonable attorney's fees, costs and necessary disbursements.
32. Additional Costs. CONTRACTOR shall be responsible to reimburse DISTRICT a
sum equal to the expenses of administration and legal services required to be expended by
DISTRICT in processing Notices to Withhold,Stop Notices,or similar legal documents arising out of
a failure of the CONTRACTOR to pay for labor or materials. Said obligation shall be provided for in
the payment bond required by the CONTRACTOR. The DISTRICT shall further have the right to
offset any such costs and expenses incurred by DISTRICT against any sums owing to
CONTRACTOR.
33. Insurance. CONTRACTOR agrees to provide insurance in accordance with the
requirements set forth herein. If CONTRACTOR uses existing coverage to comply with these
requirements and that coverage does not meet the requirements set forth herein, CONTRACTOR
agrees to amend, supplement or endorse the existing coverage to do so. The following coverages
will be provided by CONTRACTOR and maintained on behalf of the DISTRICT and in accordance
with the requirements set forth herein.
Commercial General Liability/Umbrella Insurance. Primary insurance shall be provided on ISO-
CGL form No. CG 00 01 11 85 or 88 or equivalent, as determined by District Counsel. Total limits
shall be no less than one (1) million dollars per occurrence for all coverages and three (3) million
dollars general aggregate. DISTRICT and its employees and agents shall be added as additional
insured using ISO additional insured endorsement form CG 20 10 with an edition date prior to 1992
or equivalent, as determined by District Counsel. Coverage shall apply on a primary non-
contributing basis in relation to any other insurance or self-insurance, primary or excess,available
to DISTRICT or any employee or agent of DISTRICT Coverage shall not be limited to the vicarious
liability or supervisory role of any additional insured. Umbrella Liability Insurance (over primary)
shall apply to bodily injury/property damage, personal injury/advertising injury at a minimum, and
shall include a 'drop down' provision providing primary coverage above a maximum $25,000.00
self-insured retention for liability not covered by primary policies but covered by the umbrella policy
Coverage shall be on the following form to any underlying coverage. Coverage shall be provided
on a 'pay on behalf'basis,with defense costs payable in addition to policy limits. There shall be no
cross liability exclusion. Policies shall have concurrent starting and ending dates. District Counsel
shall have the authority to make determinations on the acceptability of forms of insurance coverage.
A determination that the form of coverage is not acceptable shall cause the award to go to the next
lowest responsible bidder
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Business Auto/Umbrella Liability Insurance.Primary coverage shall be written on ISO Business
Auto Coverage form CA 00 01 06 92 including symbol 1 (Any Auto)or equivalent,as determined by
District Counsel. Limits shall be no less than one (1) million dollars per accident. Starting and
ending dates shall be concurrent. If CONTRACTOR owns no autos, a non-owned auto
endorsement to the General Liability policy described above is acceptable.
Workers'Compensation/Employers' Liability shall be written on a policy form providing workers'
compensation statutory benefits as required by law Employers' liability limits shall be no less than
one (1) million dollars per accident or disease. Employers' liability coverage shall be scheduled
under any umbrella policy described above. Unless otherwise agreed,this policy shall be endorsed
to waive any right of subrogation as respects the DISTRICT its employees or agents.
CONTRACTOR and DISTRICT further agree as follows:
1 This Section supersedes all other sections and provisions of this Contract to the extent that
any other section or provision conflicts with or impairs the provisions of this Section.
2. Nothing contained in this Section is to be construed as affecting or altering the legal status
of the parties to this Contract. The insurance requirements set forth in this Section are
intended to be separate and distinct from any other provision in this Contract and shall be
interpreted as such.
3. All insurance coverage and limits provided pursuant to this Contract shall apply to the full
extent of the policies involved, available or applicable. Nothing contained in this Contract or
any other agreement relating to the DISTRICT or its operations limits the application of such
insurance coverage.
4 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 and is not intended by any party to be all
inclusive, or to the exclusion of other coverage, or a waiver of any type.
5. For purposes of insurance coverage only this Contract will be deemed to have been
executed immediately upon any party hereto taking any steps that can be deemed to be in
furtherance of or towards, performance of this Contract.
6. All general or auto liability insurance coverage provided pursuant to this Contract, or any
other agreements pertaining to the performance of this Contract, shall not prohibit
CONTRACTOR, and CONTRACTOR'S employees, or agents, from waiving the right of
subrogation prior to a loss. CONTRACTOR hereby waives all rights of subrogation against
DISTRICT
7 Unless otherwise approved by DISTRICT CONTRACTOR'S insurance shall be written by
insurers authorized to do business in the State of California and with a minimum 'Best's
Insurance Guide rating of A:VII' Self-insurance will not be considered to comply with
these insurance specifications.
8. In the event any policy of insurance required under this Contract does not comply with these
requirements or is canceled and not replaced, DISTRICT has the right but not the duty to
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obtain the insurance it deems necessary and CONTRACTOR will promptly reimburse any
premium paid by DISTRICT
9 CONTRACTOR agrees to provide notarized evidence of the insurance required herein,
satisfactory to DISTRICT consisting of certificate(s) of insurance evidencing all of the
coverages required and an additional insured endorsement to CONTRACTOR'S general
liability and umbrella liability policies (if any) using ISO form CG 20 10 with an edition prior
to 1992 or equivalent, as determined by the District Counsel. Certificate(s) are to reflect
that the insurer will provide 30 days notice of any cancellation of coverage. CONTRACTOR
agrees to require its insurer to modify such certificates of any cancellation of coverage.
CONTRACTOR agrees to require its insurer to modify such certificates to delete any
exculpatory wording stating that failure of the insurer to mail written notice of cancellation
imposes no obligation, and to delete the word 'endeavor" with regard to any notice
provisions. CONTRACTOR agrees to provide complete copies of policies to DISTRICT
upon request.
10 CONTRACTOR shall provide proof that policies of insurance required herein expiring during
the term of this Contract have been renewed or replaced with other policies providing at
least the same coverage. Such proof will be furnished within 72 hours of the expiration of
the coverages.
11 Any actual or alleged failure on the part of DISTRICT or any other additional insured under
these requirements to obtain proof of insurance required under this Contract in no way
waives any right or remedy of DISTRICT or any additional insured, in this or any other
regard.
12. CONTRACTOR agrees to require all subcontractors or other parties hired for this project to
provide general liability insurance naming as additional insured all parties to this Contract.
CONTRACTOR agrees to obtain certificates evidencing such coverage and make
reasonable efforts to ensure that such coverage is provided as required here.
CONTRACTOR agrees to require that no contract used by any subcontractor or contracts
CONTRACTOR enters into on behalf of DISTRICT will reserve the right to charge back to
DISTRICT the cost of insurance required by this Contract. CONTRACTOR agrees that
upon request, all agreements with subcontractors or others with whom CONTRACTOR
contracts with on behalf of DISTRICT will be submitted to DISTRICT for review Failure of
DISTRICT to request copies of such agreement will not impose any liability on DISTRICT or
its employees.
13. If CONTRACTOR is a Limited Liability Company general liability coverage must be
amended so that the Limited Liability Company and its managers, affiliates, employees,
agents, and other persons necessary or incidental to its operation are insured.
14 CONTRACTOR agrees to provide immediate notice to DISTRICT of any claim or loss
against CONTRACTOR that includes DISTRICT as a defendant. DISTRICT assumes
no obligation or liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve DISTRICT
34. Indemnification. CONTRACTOR and DISTRICT agree that DISTRICT should,to
the fullest extent permitted by law be fully protected from any loss, injury damage, claim, lawsuit,
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cost, expense, attorneys fees, litigation costs, defense costs, court costs or any other cost arising
out of or in any way related to the performance of this Contract. Accordingly the provisions of this
indemnity provision are intended by the parties to be interpreted and construed to provide the fullest
protection possible under the law to the DISTRICT except for liability attributable to the
DISTRICT'S active negligence. CONTRACTOR acknowledges that DISTRICT would not enter into
this Contract in the absence of this commitment from CONTRACTOR to indemnify and protect
DISTRICT as set forth here.
To the fullest extent permitted by law and excepting only the active negligence of DISTRICT
established by a court of competent jurisdiction or written agreement between the parties,
CONTRACTOR shall defend, indemnify and hold harmless DISTRICT its employees, agents and
officials, from any liability claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses,expenses or costs of any kind,whether actual,alleged
or threatened, actual attorney fees incurred by DISTRICT court costs, interest, defense costs
including expert witness fees and any other costs or expenses of any kind whatsoever without
restriction or limitation incurred in relation to, as a consequence of or arising out of or in any way
attributable actually allegedly or impliedly in whole or in part to the performance of this Contract.
All obligations under this provision are to be paid by CONTRACTOR as incurred by DISTRICT
Without affecting the rights of DISTRICT under any provision of this Contract or this Section,
CONTRACTOR shall not be required to indemnify and hold harmless DISTRICT as set forth above
for liability attributable to the active negligence of DISTRICT provided such active negligence is
determined by agreement between the parties or the findings of a court of competent jurisdiction.
This exception will apply only in instances where the DISTRICT is shown to have been actively
negligent and not in instances where CONTRACTOR is solely or partially at fault or in instances
where DISTRICT'S active negligence accounts for only a percentage of the liability involved. In
those instances, the obligation of CONTRACTOR will be for that portion or percentage of liability
not attributable to the active negligence of DISTRICT as determined by written agreement between
the parties or the findings of a court of competent jurisdiction.
The obligations of CONTRACTOR under this or any other provision of this Contract will not be
limited by the provisions of any workers'compensation act or similar act. CONTRACTOR expressly
waives its statutory immunity under such statutes or laws as to DISTRICT its employees and
officials.
CONTRACTOR agrees to obtain executed indemnity agreements with provisions identical to those
set forth in this section from each and every subcontractor sub-tier contractor or any other person
or entity involved by for with, or on behalf of CONTRACTOR in the performance of the subject
matter of this Contract. In the event CONTRACTOR fails to obtain such indemnity obligations from
others as required here, CONTRACTOR agrees to be fully responsible according to the terms of
this section.
Failure of DISTRICT to monitor compliance with these requirements imposes no additional
obligations on DISTRICT and will in no way act as a waiver of any rights hereunder This obligation
to indemnify and defend DISTRICT as set forth herein is binding on the successors, assigns, or
heirs of CONTRACTOR and shall survive the termination of this Contract or this section.
35. Permits. The CONTRACTOR shall obtain from DISTRICT City County State,
Federal or other responsible public agencies all licenses and permits, and pay all fees related
thereto, necessary to complete the job.
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36. Assignment. No assignment by the CONTRACTOR of this Contract 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
37 Safety and Site Condition. CONTRACTOR shall perform all operations with due
regard 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. All
operations shall be conducted by CONTRACTOR so that no fire hazards are created.
38. Utility Location. DISTRICT acknowledges its responsibilities with respect to
locating facilities pursuant to California Government Code Section 4215.
39. Trenching. If this Contract involves digging trenches or other excavations that
extend deeper than four feet below the surface, CONTRACTOR shall promptly and before the
following conditions are disturbed, notify the District Engineer 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 Contract.
(d) The District Engineer shall promptly investigate the conditions, and if he 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
Contract.
(e) In the event that a dispute arises between District Engineer and the CONTRACTOR
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 Contract, but shall proceed with all work to be performed under the
Contract. The CONTRACTOR shall retain any and all rights provided either by contract or
by law which pertain to the resolution of disputes and protests between the contracting
parties.
40. Notices. The parties hereto agree that all formal notices required by this Contract
may be provided to the following persons at the following addresses by sending the same by
certified or registered mail as follows:
DISTRICT District Engineer
12
Costa Mesa Sanitary District
628 W 19th Street
Costa Mesa, California 92627-2716
CONTRACTOR: Southwest Pipeline and Trenchless Corporation
539 W 140`h Street
Gardena, CA 90248
41 Effect of Invalidity The invalidity in whole or in part of any provisions hereof shall
not affect the validity of any other provision.
42. 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 Contract or securing favorable treatment with
respect thereto.
43. Conflict of Interest. CONTRACTOR warrants that he has no blood or marriage
relationship,and that he is not in any way associated with any architect, engineer or other preparer
of the plans and specifications for this project.
44. Copeland Anti-Kickback' Act. If applicable to this Contract, CONTRACTOR and
its subcontractors shall comply with the provisions of the Copeland Anti-Kickback' Act (18 USC
Section 874), as supplemented in Department of Labor regulations, which Act provides that each
Contractor shall be prohibited from requiring, 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.
45. Final Closeout Agreement and Release of All Claims. Prior to filing the Notice of
Completion the CONTRACTOR and DISTRICT shall execute and record a Final Closeout
Agreement and Release of All Claims if so determined by DISTRICT
46. Guarantees.CONTRACTOR shall and hereby does guarantee all work for a period
of one(1)year after the date of filing of the Notice of Completion 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 the filing of
the Notice of Completion, 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.
47 Job Progress. CONTRACTOR agrees to maintain a critical path analysis
throughout the project. CONTRACTOR agrees to meet with the District Engineer on a weekly or
other periodic basis, or as requested by the District Engineer to review job progress.
CONTRACTOR agrees to provide District Engineer 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.
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48. Resolution of Claims. For all claims that are less than Three Hundred and Seventy
Five Thousand Dollars ($375,000.00), the provisions of Public Contracts Code Section 20104 et
seq. (Article 1.5— Resolution of Construction Claims) shall be followed.
49. Notice to Contractor of Claims. DISTRICT shall provide notice to CONTRACTOR
upon receipt of any third-party claim related to the Contract.
IN WITNESS WHEREOF the parties hereto have entered into this agreement the date and year
first above written.
ATTEST COSTA MESA SANITARY DISTRICT
JoaI�%�''evak• Sc Scoff Carroll
Cler$lof,the ?istrict -,.-L ' - General Manager
_%
APPROVED AS T,FORM:
"'"r• •� CONTRACTOR
1l'
Name: Southwest Pipeline and Trenchless
Corporation
Colin R. Burns
Associate District Counsel Address: 539 W. 140th Street
Gardena CA •! •8
APPROVED AS TO CONTENT By _i
PRESIDENT/TREASURER
Sr''fpAfEST PIPELINE AND
t✓ 'S CORP
Robi Hamers
District Engineer
—
STATE OF CALIFORNIA) ss (INDIVIDUAL)/(CORPORATION)
14
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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