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Contract - Nikola - 2010-10-12 .l AGREEMENT FOR CONTRACTOR SERVICES This Agreement is made and entered into by and between the Costa Mesa Sanitary District, a district formed pursuant to the Sanitary District Act of 1923 (hereinafter referred to as 'District"), and Nikola Corporation (hereinafter referred to as 'Contractor') Recitals WHEREAS District has taken appropriate proceedings to authorize construction of the public work and improvements herein provided and execution of this contract; and WHEREAS in accordance with Section 4 05 070(b) of the District's Operations Code, the General Manager has the authority to award projects less than $125 000 and based on bid opening occurring 9/07/10 District found Contractor to be the lowest responsive and responsible bidder for construction of said improvements. NOW THEREFORE, the parties hereto AGREE as follows. 1 SCOPE OF THE WORK Contractor shall perform the work described briefly as follows: The aforesaid improvements are further described in the 'Contract Documents' hereinafter referred to. 2. CONTRACT DOCUMENTS The complete contract consists of the following documents: This Agreement, Notice Inviting Sealed Proposals, the Accepted Bid, the complete plans, profiles, detailed drawings and specifications, (which include the Standard Specifications for Public Works Construction as modified by these Contract Documents) Faithful Performance Bond, Labor and Material Bond, Insurance Documents, and all addenda setting forth any modifications or interpretations of said documents. The terms of this Agreement shall prevail over all written specifications except as provided for in any Addendum attached hereto. All of the above named documents are intended to complement one another so that any work called for in one, and not mentioned in the other or vice versa, is to be executed the same as if mentioned in all said documents. The documents comprising the complete contract will hereinafter be referred to as the 'Contract Documents' 1 3. SCHEDULE All work shall be performed in accordance with the schedule approved by District's Engineer and under his direction. 4. EQUIPMENT — PERFORMANCE OF WORK Contractor shall furnish all tools, equipment, apparatus, facilities, labor and materials necessary to perform and complete in a good and workmanlike manner the work of general construction as called for and in the manner designated in, and in strict conformity with, the plans and specifications for said work which said specifications are entitled The equipment, apparatus, facilities, labor and material shall be furnished and said work performed and completed as required in said plans and specifications to the satisfaction of and subject to the acceptance of the District's Engineer or his designated assistant. 5. CONTRACT PRICE The contract price shall be sixty-three thousand nine hundred nine dollars ($63 909) with adjustments up or down in accordance with bid unit prices as finally calculated by District and Contractor The Contractor agrees that the District shall have the right to increase or decrease the quantity of any bid item or portion of the work or to omit portions of the work as may be deemed necessary or expedient, and that the payment for incidental items of work, not separately provided in the proposal shall be considered included in the price bid for other various items of work. 6. TIME OF PERFORMANCE The time fixed for the commencement of such work is within 10 days after c receiving notice to proceed and to complete said work within 30 working days.fre J� firstly-ef-seatraet. (06.110 7 TIME OF THE ESSENCE Time is of the essence in this contract. 7a. JOB PROGRESS 2 Contractor agrees to maintain a 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. Contractor agrees to provide District with critical job 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. 8. EXTENSION OF TIME If such work is not completed within such time, the District Board or its designee shall have the right to increase the number of working days in the amount it may determine will best serve the interests of District and, if it desires to increase said number of working days, it shall have the further right to charge to Contractor and deduct from the final payment for the work the actual cost of engineering, construction review and other overhead expenses which are directly chargeable to Contractor and which accrue during the period of such extension, except that the cost of the final service and preparation of the final estimates shall not be included in such charges; provided, however that no extension of time for the completion of such work shall ever be allowed unless, at least twenty (20) days prior to the time herein fixed for the completion thereof or the time fixed by the District Board or its designee for such completion as extended, Contractor shall have filed an application for extension thereof in writing with the District Engineer addressed to the District Board and its designee. Said application shall be made pursuant to the requirements of Sections 20104 through 20104 8 Public Contracts Code In this connection, it is understood that the General Manager shall not transmit any such request to the District Board if not filed within the time herein prescribed 9. LIQUIDATED DAMAGES In the event Contractor for any reason, shall have failed to perform the work herein specified within the time herein required and to the satisfaction of District Engineer District may in lieu of any other of its rights authorized in this Agreement, deduct from payments or credits due Contractor after such breach a sum equal to Two hundred fifty ($250) Dollars as liquidated damages for each day beyond the date herein provided for the completion of such work. This sum is established pursuant to Section 53069 85 of the Government Code and is deemed by the parties hereto to be a reasonable amount. 10. PERFORMANCE OF SURETIES 3 In the event of any termination as herein above provided the District shall immediately give written notice thereof to Contractor and Contractor's sureties, and the sureties shall have the right to take over and perform the Agreement provided, however that if the sureties, within five (5) days after giving them said notice of termination, do not give District written notice of their intention to take over the performance of the Agreement and do not commence performance thereof within five (5) days after notice to the District of such election, District may take over the work and prosecute the same to completion, by contract or by any other method it may deem advisable, for the account, and at the expense of Contractor and the sureties shall be liable to District for any excess cost or damages occasioned District thereby. and in such event, District may without liability for so doing take possession of and utilize in completing the work, such materials, appliances, plant and other property belonging to Contractor as may be on the site of the work and necessary therefore 11 DISPUTES PERTAINING TO PAYMENT FOR WORK Should any dispute arise respecting the true value of the work done, of any work omitted, of any extra work which Contractor may be required to do or respecting the size of any payment to Contractor during the performance of this Contract, such dispute shall be decided pursuant to Section 20104 through 20104 8 Public Contracts Code as the same is now in force and as the same may be amended from time to time provided that the dollar amount of the dispute is within the statutory limits set forth therein. 12. PERMITS — COMPLIANCE WITH LAW Contractor shall, at Contractor's expense, obtain all necessary permits and licenses for the construction of each improvement, give all necessary notices and pay all fees and taxes required by law 13. SUPERINTENDENCE BY CONTRACTOR Contractor shall give personal superintendence to the work on said improvement or have a competent foreman or superintendent satisfactory to the District Engineer on the work at all times during progress with authority to act for him. 14 OBSERVANCE BY DISTRICT Contractor shall at all times maintain proper facilities and provide safe access for observation by District to all parts of the work and to the shops wherein the work is in preparation. 4 15. EXTRA AND / OR ADDITIONAL WORK OR CHANGES Should District at any time during the progress of said work request any alteration, deviations, additions, or omissions from said specifications or plans or other contract documents, it shall be at liberty to do so and the same shall in no way affect or make void the Contract, but will be added to or deducted from the amount of said contract price, as the case may be, as provided in paragraph 36. 16. OBSERVATION AND TESTING MATERIALS Contractor shall notify District a sufficient time in advance of the manufacture or production of materials to be supplied by Contractor under this Contract in order that District may arrange for mill or factory observation and testing of same. Any materials shipped by Contractor from factory prior to having satisfactorily passed such testing and observation by District's representative shall not be used on said improvement unless Contractor is previously notified by District that such testing and observation will not be required. Contractor shall also furnish District, in triplicate certified copies of all required factory and mill test reports. 17 PERMITS AND CARE OF THE WORK Contractor has examined the site of the work and is familiar with its topography and condition, location of property lines, easements, building lines and other physical factors and limitations affecting the performance of this Agreement. Contractor at Contractor's expense, shall obtain any permission necessary for any operations conducted off the property owned or controlled by District. Contractor shall be responsible for the proper care and protection of all materials delivered and the work performed until completion and final observation and acceptance 18. OTHER CONTRACTS DISTRICT may award other contracts for additional work and Contractor shall fully cooperate with such other contractors and carefully fit Contractor's own work to that r provided under other contracts as may be directed by District MaaagerfEngineer Contractor shall not commit or permit any act that will interfere with the performance of work by any other contractor Muir° 19 PAYMENTS TO CONTRACTOR 5 (a) On or before the 25th day of each and every month during the performance of the work, Contractor shall submit to District Engineer an itemized statement of quantities with unit prices of materials incorporated into the improvement during the preceding month and the portion of the contract sum applicable thereto On approval in writing of said statement by District Engineer it shall be submitted to the District Finance Department and then to the District Board. It is understood and agreed between the parties that lead time for processing invoices for inclusion on the warrant list of the District has been established by the District Finance Office and that invoices for payment will be processed and paid in accordance with any established rules and regulations of said District Finance Officer Payment shall be ninety-five percent (95%) of the amount invoiced, the remaining five percent (5%) to be subject to the provisions in Paragraph (B). The payment as provided for herein [except for the retention provided for in Paragraph (B)] shall be made the day following its approval by the District Board at its next regular meeting following the submittal of the invoice to the Board by the District Manager/Engineer (b) District reserves the right to retain five percent (5%) of the contract price for a period of thirty-five (35) days after the filing of the notice of completion of the contract. Contractor shall have the following options pursuant to Section 22300 Public Contracts Code: (i) To substitute securities for any money retained by District; (ii) To require District to pay into an escrow created at the expense of Contractor The substitute securities provided for herein may be held pursuant to Section 22300 and any escrow agreement entered into between the parties shall be in the statutory form set forth in Section 22300 (c) The District shall observe the provisions of Government Code Section 7107 with respect to final payment and disputes relating thereto 20. CONTRACT SECURITY Concurrently with the execution hereof Contractor shall furnish. (1) A surety bond in an amount equal to one hundred percent (100%) of the contract price as security for the Faithful Performance of this Contract to be held for 1 year after the Notice of Completion is recorded; (2) A separate surety bond in an amount equal to at least one hundred percent (100%) of the contract price as security for payment of all persons performing labor and furnishing materials in connection with this Contract. 6 The bonds required hereunder shall be provided by an admitted carrier District reserves the right to object to said surety in accordance with the procedure set forth in Code of Civil Procedure Sections 995 650 et seq. Bonds shall be accompanied with an appropriate power of attorney authorizing the execution of the bond 21 INDEMNIFICATION Contractor and District agree that District should to the extent permitted by law be fully protected from any loss, injury damage, claim, lawsuit, 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 Agreement. 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 Agreement in the absence of this commitment from Contractor to indemnify and protect District as set forth here. To the full 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, 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 the Agreement. All obligations under this provision are to be paid by Contractor as incurred by the District. Without affecting the rights of the District under any provision of this Agreement 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 only apply 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 Agreement 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. 7 Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here 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 or subject matter of this Agreement. In the event Contractor fails to obtain such indemnity obligations form 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 Agreement or this section. 22. INSURANCE Contractor agrees to provide insurance in accordance with the requirements set forth here. 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 coverage s 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 Total limits shall be no less than five (5) million dollars per occurrence for all coverage s. District and its employees and agents shall be added as additional insures using ISO additional insured endorsement form CG 20 10 11 85 (in no event will District accept an endorsement form with an edition date later than 1990). 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 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. 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). Limits shall be no less than five (5) 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. 8 Workers' Compensation/Employers' Liability shall be written on a policy form providing workers' compensation statuary 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 Agreement 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 Agreement. The insurance requirements set forth in this Section are intended to be separate and distinct from any other provision in this Agreement and shall be interpreted as such. 3. All insurance coverage and limits provided pursuant to this agreement shall apply to the full extent of the policies involved available or applicable. Nothing contained in this Agreement 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 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 Agreement 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 Agreement. 6 All general or auto liability insurance coverage provided pursuant to this Agreement, or any other agreements pertaining to the performance of this Agreement, 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. 9 8 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 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 coverage s required and an additional insured endorsement to Contractor's general liability and umbrella liability policies (if any) using ISO form CG 20 10 11 85 Certificate(s) are to reflect that the insurer will provide thirty (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 Agreement have been renewed or replaced with other policies providing at least the same coverage s. 11 Any actual or alleged failure on the part of the District or any additional insured under these requirements to obtain proof of insurance required under this Agreement 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 insures all parties to this Agreement. 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 Agreement. 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 insures. 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 10 obligation or liability for 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 the District. 15 District Counsel may accept other forms and certificates when in the best interests of the District to do so 23. LEGAL WORK DAY — PENALTIES FOR VIOLATION Eight (8) hours of labor shall constitute a legal day's work. Contractor shall not require more than eight (8) hours labor in a day from any person employed by Contractor in the performance of such work. Contractor shall forfeit as a penalty to District the sum of Twenty Five ($25 00) Dollars for each laborer workman or mechanic employed in the execution of this Contract by Contractor or by any subcontractor for each calendar day during which such laborer workman or mechanic is required or permitted to labor more than eight (8) hours per day in violation of the provisions of Section 1815 of the Labor Code of the State of California. 24. PREVAILING WAGE SCALE The minimum compensation to be paid for labor upon all work performed under this Contract shall be the general prevailing wage scale established by the Department of Industrial Safety for the State of California and as adopted by District. Contractor shall forfeit the sum of $50 00 per day to District for each day prevailing wages are not paid in accordance with Labor Code Section 1775 Contractor shall comply in all respects with Title 40 U S C Section 276a, also known as 'The Davis-Bacon Act' where federal funds are involved and Contractor shall also comply in all respects with California Labor Code Sections 1770 et seq. if applicable If Contractor is engaged in the construction, prosecution, completion or repair of any public building or public work, or building or work financed in whole or in part by loans or grants from the United States, Contractor shall furnish each week to the DISTRICT Finance Officer a statement with respect to the wages paid each of its employees during the preceding weekly payroll period. 24a. PAYROLL RECORDS The Contractor and all Subcontractors shall keep accurate payroll records on the job site in accordance with Labor Code Section 1776 and make those records available for inspection at all reasonable times. 11 25. EMERGENCY — ADDITIONAL TIME FOR PERFORMANCE — PROCUREMENT OF MATERIALS If because of war or other declared national emergency the Federal or State government restricts, regulates or controls the procurement and allocation of labor or materials, or both, and if solely because of said restrictions, regulations or controls, Contractor is, through no fault of Contractor unable to perform this Agreement, or the work is thereby suspended or delayed, any of the following steps may be taken. (a) District may pursuant to resolution of the Board grant Contractor additional time for the performance of this Agreement sufficient to compensate in time for said delay or suspension. To qualify for such extension of time, Contractor within three (3) days of Contractor's discovering such inability to perform, shall notify General Manager in writing thereof and give specific reasons therefore; General Manager shall thereupon have sixty (60) days within which to procure such needed materials or labor as it is specified in this Agreement, or permit substitution or provide for changes in the work in accordance with other provisions of this Agreement. Substituted materials, or changes in the work, or both, shall be ordered in writing by General Manager and the concurrence of the District Board shall not be necessary All reasonable expenses of such procurement incurred by the General Manager shall be defrayed by Contractor or (b) If such necessary materials or labor cannot be procured through legitimate channels within sixty (60) days after the filing of the aforesaid notice, either party may upon thirty (30) days written notice to the other terminate this Agreement. In such event, Contractor shall be compensated for all work executed upon a unit basis in proportion to the amount of the work completed, or upon a cost plus ten percent (10%) basis, whichever is the lesser Materials on the ground in process of fabrication or en route upon the date of notice of termination specially ordered for the project and which cannot be utilized by Contractor shall be compensated for by District at a cost, including freight, provided that Contractor shall take all steps possible to minimize this obligation; or (c) District Board by resolution, may suspend this Agreement until the cause of inability to perform is removed, but for a period of not to exceed ninety (90) days. If this Agreement is not canceled and the inability of Contractor to perform continues, without fault on Contractor's part, beyond the time during which the Agreement may have been suspended as hereinabove provided, District Board may further suspend this Agreement, or either party hereto may without incurring any liability elect to declare this Agreement terminated upon the ground of impossibility of performance In the event District declares this Agreement terminated, such declaration shall be authorized by the District Board, by resolution, and Contractor shall be notified in writing thereof within five (5) days after the adoption of such resolution, Upon such termination, Contractor shall be entitled to proportionate compensation at the agreement rate for such portion of the Agreement as may have been performed or 12 (d) District may terminate this Agreement without cause, in which case Contractor shall be entitled to proportionate compensation at the agreement rate for such portion of the Agreement as may have been performed Such termination shall be authorized by resolution of the District Board. Notice thereof shall be forthwith given in writing to Contractor and this Agreement shall be terminated upon receipt by Contractor of such notice. 26. PROVISIONS CUMULATIVE The provisions of this Agreement are cumulative and in addition to and not in limitation of any other rights or remedies available to District. 27 NOTICES It shall be the duty and responsibility of Contractor to notify subcontractors and materialmen of the following special notice provision; namely all notices of intention to lien or stop notices shall be either personally delivered or transmitted by certified mail but in either event said notices shall be directed to the District. All notices shall be in writing and delivered in person or transmitted by certified mail postage prepaid Notices required to be given to District shall be addressed as follows: COSTA MESA SANITARY DISTRICT 628 West 19th Street Costa Mesa, California 92626 Attn: Joan Revak Notices required to be given to Contractor shall be addressed as follows: Nikola Corporation 18012 Cowan, Suite 290 Irvine CA 92614 Attn. Johnny Klichan 28. SUBCONTRACTING Contractor acknowledges that he is aware of the provision of the 'Subletting and Subcontracting Fair Practices Act' 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 13 request, certified copies of any or all subcontracts shall be furnished the 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 (10%) 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 Contractor will be held responsible for their work. The District will deal directly with and make all payments to the Contractor 29. CONTRACTOR'S AFFIDAVIT After the completion of the work contemplated by this Contract, Contractor shall file with the District's Engineer his affidavit stating that all workmen and persons employed and 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 connections with Notice to Withhold, which have been filed under the provisions of the statutes of the State of California. 30 CONTRACTOR'S WAIVER The acceptance of Contractor of the final payment shall constitute a waiver of all claims against District under or arising out of the Contract unless the disputed amounts are specifically set forth in the affidavit and release 31 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 District's Engineer and all bonds and certificates of insurance required pursuant hereto have been furnished to and approved by District. 32. UTILITY LOCATION District acknowledges its responsibilities with respect to the location of utility facilities pursuant to California Government Code Section 4215 14 33. DISCRIMINATION Contractor represents that it has not, and agrees that it will not, discriminate in its employment practices on the basis of race creed religion, national origin, color sex, age, or disability 34 GOVERNING LAW This Contract and any dispute arising hereunder shall be governed by the law of the State of California. 35. INTEGRATION The parties agree that this document represents their entire agreement and that this Agreement may not be subsequently modified unless said modification is made in writing and is signed by both parties. 36. CHANGES / EXTRA WORK COMPENSATION District may by written change notice, make changes in the work, changes in or addition to the specification, require additional work or services or direct the omission of work or services covered by this Agreement. If any such change or requirement causes any increase or decrease in the Contractor's cost of performance of this Agreement, an equitable adjustment shall be made and the Agreement modified in writing accordingly Changes in compensation shall be calculated using the formula set forth in Subsection B below No claim by Contractor for adjustment under this paragraph shall be valid unless asserted in writing by Contractor within thirty (30) days from the date of receipt of said written change notice signed by the District's General Manager or the President and Secretary of the Board of Directors, as appropriate. Contractor shall make no additions, changes, alterations or omissions except upon the written change notice of the General Manager given before the work is to be done or before services are rendered. The General Manager shall only have authority to order changes when the cumulative work under the contract is of a value less than 10% of the contract amount or FIFTEEN THOUSAND DOLLARS ($15 000 00), whichever is greater All other changes must be approved by the Board of Directors. (a) Extra Work Compensation. Should Contractor encounter extra work due to the discovery of unforeseen conditions that Contractor should not have anticipated based in its own independent investigation, or due to changes in the project made by District, Contractor shall immediately bring such condition to the attention of the District's Manager/ Engineer and shall submit a Request for Change Order within thirty (30) days in the form set forth in the contract documents. All such requests for extra 15 compensation shall be subject to the approval of the Board of Directors unless within the authority of the District Manager/Engineer (b) Limitation of Compensation. Contractor shall be limited in the compensation that it may recover under this contract. Contractor shall be limited to extra days for delay time and any direct costs related thereto and to the direct costs of completing extra work. 'Direct Costs' shall be those items defined in Section 3-3.2.2 Basis for Establishing Costs, Standard Specifications for Public Works Construction, as the same is modified herein, plus a percentage as specified below Excluded from direct costs shall be bond and insurance costs, so-called 'Eichleay damages' including, but not limited to home office overhead lost bonding capacity profit, lost profits, and lost interest, except to the extent those are covered by the percentages allowed Categories that may be recovered for extra work are limited to the following with the percentages added: Direct Costs Mark-Up Labor 15% Materials 12% Equipment Rental 12% Other Items 12% Subcontracted Work 10% (first $5 000) Subcontracted Work 5% (work in excess of first $5 000) Specialty Subcontracting 5% (Provided at least three (required by extra work) competitive bids are obtained and contractor selected the lowest bidder) Contractor agrees that it will provide invoices or similar documents showing actual costs so that percentages can be applied Contractor agrees that without such an invoice or other document, compensation shall not be owed by District. CONTRACTOR ACKNOWLEDGMENT OF LIMITATIONS OF COMPENSATION FOR EXTRA WORK Contractor acknowledges that his recovery for damages or extra work is limited as provided in this paragraph. Contractor's Initials 37 INDEPENDENT CONTRACTOR Contractor acknowledges and agrees that he is an independent Contractor who has been retained for the results of his work and not for the means by which it is accomplished It is specifically agreed that the District does not have the right of control 16 over the mode of doing the work contracted for and that neither the Contractor his employees, nor his consulting Engineers are employees of the District. 38. REMEDIES The remedies provided District herein shall be cumulative, and in addition to any other remedies provided by law or equity A waiver of a breach of any provision hereof shall not constitute a waiver of any other breach. 39 BOOKS AND RECORDS Contractor's books, records and its plants or such part thereof as may be engaged in the performance of this Contract, shall at all reasonable times be subject to observation and audit by any authorized representative of District. 40 NOTICE TO DISTRICT OF LABOR DISPUTES Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this Contract, Contractor shall immediately give notice thereof including all relevant information with respect thereto to District. 41 AS-BUILT DRAWINGS Contractor shall provide District's Engineer with drawings of the Construction in its 'as-built' condition. 42. DAYS AND HOURS OF WORK Should the Contractor desire to perform construction work on Saturday Sunday or on any day observed as a holiday by District, or prior to 8.00 a.m. or after 5.00 p.m. of any day he must submit his written request to Districts Engineer at least 24 hours prior to the proposed start of such work. No such work shall be commenced without the prior approval of the District's Engineer The District observes those holidays specified by Government Code Section 6700 The foregoing shall not apply in the case of an emergency necessitating immediate work. 43. CONTRACTOR'S INDEPENDENT INVESTIGATION 17 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 for purpose of letting this Contract out to bid, will be accepted as an excuse for any failure or omission on the pad of the Contractor to fulfill in every detail all requirements of said Contract, 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. In accordance with Public Contracts Code Section 7105 Contractor shall not be liable for Acts of God. 44 INTERPRETATION In the event of any conflict, inconsistency or incongruity between the provision of this Contract and the provisions of Paragraph 2 hereof or amendments thereto the provisions of this Contract shall corlYrol in all respects.(eft Ant) JoG +nt (eft(enc..) r 45. ATTORNEY'S FEES ct, 10(124 a 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. 46. ADDITIONAL COSTS Contractor shall be responsible to reimburse the District a sum equal to the expenses of administration and legal services required to be expended by the 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 under the Agreement. 47 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 18 48. 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 49 OBSERVATION Services shall be furnished by the District on an eight (8) hour day and forty (40) hour week basis. Any additional observation that is required in excess of the foregoing shall be paid for by the Contractor at special hourly rates to be determined by District. 50. WORKMANSHIP AND MATERIALS Unless otherwise specifically provided for in the specifications, all workmanship equipment, materials and articles incorporated in the work covered by this Contract are to be new and of the most suitable grade of their respective kinds for the purpose intended. Where equipment, materials or articles are referred to in the specification as equal to any particular standard District shall decide the question of equality In the manner and to the extent required by the specifications, Contractor shall furnish District for approval full information concerning the equipment, materials or articles which he contemplates incorporating in the work. Samples of material shall be submitted for approval when required for specification. In addition to furnishing a list of subcontractors, and prior to commencing the work covered by this Contract, Contractor shall furnish District a list of the equipment, materials, or articles Contractor proposes to use in the performance of this Contract. Substitutions of equipment, materials or articles shall not be done unless approved by the District's Engineer 51 WARRANTY Unless otherwise agreed to in writing by the parties, Contractor warrants that the work shall be performed in the best and most workmanlike manner by qualified, careful and efficient workers, in strict conformity with the best standard practices; shall be free from defect in workmanship and material and shall conform with all provisions of this Contract, including but not limited to all specifications included in this Contract. The provisions of this warranty together with any applicable warranties and guarantees of Contractor's subcontractors and suppliers shall survive observation, test and acceptance of any payment for the work performed hereunder and shall run to the District its successors and assigns. Except for latent defects, fraud or such gross 19 mistakes of Contractor as amount to fraud, notice of any defect or non-conformity may be given by District to Contractor at any time prior to the expiration of ONE (1) YEAR after the recording of the Notice of Completion by District of such work. Contractor shall promptly perform all work required to correct such defects or non-conformities by replacement or repair as District may direct, all at Contractor's sole cost and expense. All defective or non-conforming material which District requires to be replaced shall be removed promptly from the site of the work by Contractor at its sole expense. If Contractor fails promptly to correct any non-conformity District may do so and charge the cost thereof to Contractor Work required to be corrected or replaced shall be subject to the provisions of this paragraph in the same manner and to the same extent as when such work was initially presented for final acceptance. District's right to require Contractor to repair or replace any defective or non-conforming work shall be in addition to any other rights District may have for breach of warranty and shall not be considered as an exclusive remedy If the District prefers to accept defective or non-conforming work, it may do so instead of requiring its removal or correction, in which case a Change Order will be issued to reflect a reduction in the Contract Sum where appropriate and equitable Such adjustment shall be effected whether or not final payment had been made. 52. REGIONAL NOTIFICATION CENTERS Contractor agrees to contact the appropriate regional notification center in accordance with Government Code Section 4216 before commencing any excavation. 53. TRENCH PROTECTION Contractor shall submit its detailed plan for worker protection during the excavation of trenches required by the scope of the work in accordance with Labor Code Section 6705 54 TRENCHING CONDITIONS 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 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 or Class II disposal site in accordance with provisions of existing law (b) Subsurface or latent physical conditions at the site differing from those indicated 20 (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 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 the procedures described in the contract. (e) In the event that a dispute arises between the District 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 an 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. 55. ASSIGNMENT OF CLAYTON ACT AND CARTWRIGHT ACT CLAIMS In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor of 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.0 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. 56. NOTICE OF THIRD PARTY CLAIMS District agrees to provide Contractor with timely notice of the receipt of any third party claim related to the contract, pursuant to Public Contracts Code Section 9201 IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed the day and year first above written. 21 1 COSTA MESA SANITARY DISTRICT CONTRA • - / � � General Manager ' .nature.- Mr �ONNNy N. et, cl-14NV ATTEST Typed Nar/e Title Di ,:ctTClerk APPROVED AS TO FORM: District Counsel 22