Project 140-145 - Contract - Miramontes - 1997-10-09 tt
AGREEMENT
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
MIRAMONTES CONSTRUCTION COMPANY, INC. a 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 on October 9 1997 after notice duly given, DISTRICT awarded the
contract for the construction of improvements hereinafter described to CONTRACTOR, which
CONTRACTOR said DISTRICT found to be the lowest responsible bidder for construction of
said improvements.
The Parties hereto agree as follows:
1 Scope of the Work
CONTRACTOR shall perform the work described briefly as follows:
Project Nos. 1112100-140 and 1112100-145 Reconstructing Various Sewer Lines.
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 the 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'
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 One Hundred Thirty Six Thousand Seven Hundred Eighty
Four Dollars ($136,784 00) 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.
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6. Time of Performance
The time fixed for the commencement of such work is within ten (10) days after
receiving notice to proceed and to complete said work within sixty (60) working days from the
first day of contract.
7 Time of the Essence
Time is of the essence in this contract.
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,
is 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 application for extension thereof
in writing with the DISTRICT Manager/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 DISTRICT Manager/Engineer 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
Dollars ($250 00) 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
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Government Code and is deemed by the parties hereto to be a reasonable amount.
10 Performance of Sureties
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 therefor
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.
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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.
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 37
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.
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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
provided under other contracts as may be directed by DISTRICT Manager/Engineer
CONTRACTOR shall not commit or permit any act which will interfere with the performance
of work by any other contractor
19 Payments to Contractor
(A) On or before the 25th day of each and every month during the performance of the
work, CONTRACTOR shall submit to DISTRICT Manager/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
Manager/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
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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
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.
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 set Bonds shall be accompanied with an appropriate power
of attorney authorizing the execution of the bond.
21 Indemnification
CONTRACTOR hereby agrees to protect, defend, indemnify and hold DISTRICT its
elective board, officers, agents and employees harmless from and against any and all attorney's
fees, costs, expenses or damages of any nature, by reason of injury sustained by any person,
including death at any time resulting therefrom, or by reason of loss of loss of use of injury
to or destruction of property including consequential damages of any nature resulting therefrom,
arising out of performance of this Contract by or on behalf of CONTRACTOR, including
damages occasioned by or allegedly occasioned by joint or contributory negligence or omission
or affirmative acts in connection with supervision or direction of the work by DISTRICT its
elective or appointed board, officers, agents or employees.
The provisions of the foregoing paragraph shall in no event apply to damages occasioned
by the sole negligence of DISTRICT its elective board, officers, agents or employees.
CONTRACTOR further agrees to protect, defend, indemnify and hold DISTRICT free
and harmless from and against any and all obligations and liabilities under any statutes, laws or
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regulations pertaining to provisions of a safe place for the employment of workers (Safe Place
Statutes) or any similar statues, laws or regulations with respect to injury sustained, including
death at any time resulting therefrom, by any employee of CONTRACTOR, CONTRACTOR's
subcontractors, or others performing under this Contract on behalf of CONTRACTOR.
DISTRICT does not, and shall not, waive any rights against CONTRACTOR which it
may have by reason of the aforesaid hold harmless agreements because of the acceptance by
DISTRICT or the deposit with DISTRICT by CONTRACTOR of any of the insurance policies
hereinafter described in Paragraph 22 hereof
The aforesaid hold harmless agreements by CONTRACTOR shall apply to all damages
and claims for damages of every kind suffered, or alleged to have been suffered, including but
not limited to attorney's fees, by reason of the aforesaid operations of CONTRACTOR or any
subcontractor or others performing on behalf of CONTRACTOR, regardless of whether or not
such insurance polices shall have been determined to be applicable to any of such damages or
claims for damages.
22. Insurance
CONTRACTOR shall not commence work under this Contract until he shall have
obtained all insurance required under this section and such insurance shall have been approved
by DISTRICT as to form, ratings amount and carrier nor shall CONTRACTOR allow any
subcontractor to commence work on his subcontract until all similar insurance required of the
subcontractor shall have been so obtained and approved.
Failure of CONTRACTOR to supply and failure of DISTRICT to secure and/or approve
specified insurance shall not alter or invalidate the provisions of Section 21 of this Contract.
A. Workers' Compensation Insurance
CONTRACTOR shall take out and maintain during the life of this Contract
workers compensation insurance and, if any work is sublet, CONTRACTOR
shall require subcontractor similarly to provide workers' compensation insurance.
CONTRACTOR agrees to indemnify DISTRICT for any damage resulting to it
from failure of either CONTRACTOR or any subcontractor to take out or
maintain such insurance.
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B. Public Liability and Property Damage Insurance
CONTRACTOR shall take out and maintain during the life of this Contract such
public liability and property damage insurance as shall protect DISTRICT its
elective and appointive board, officers, agents and employees, CONTRACTOR
and any subcontractors performing work covered by this Contract from claims for
damages for personal injury including death, as well as from claims for property
damage which may arise from CONTRACTOR s or any subcontractor's
operations under this Contract, whether such operations be by CONTRACTOR
or by any subcontractor or by anyone directly or indirectly employed by either
CONTRACTOR or any subcontractor and the amount of such insurance shall be
as follows:
1 Public Liability and Property Damage Insurance on account of bodily
injuries, including death resulting therefrom in the sum of not less than
Five Million ($5 000 000) Dollars combined single limit resulting from
any one accident which may arise from the operations of CONTRACTOR
in performing the work provided for herein.
2. Said Public Liability and Property Damage Insurance (including
automobiles) shall be endorsed to name the COSTA MESA SANITARY
DISTRICT its elective board, officers, agents and employees as
additional insureds with respect to all operations performed by or on
behalf of CONTRACTOR. Said policy shall be endorsed to provide that
coverage shall not be reduced or canceled unless and until thirty (30) days
advance notice of such reduction and/or cancellation has been mailed to
DISTRICT
3 Said Public Liability and Property Damage Insurance (including
automobiles) shall include contractual liability insurance applying to
liability assumed under this Contract. 'XCU' coverage shall be provided
if any trenching is required.
4 Said Public Liability and Property Damage Insurance shall be endorsed to
stipulate that such insurance as is afforded to the COSTA MESA
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SANITARY DISTRICT its elective board, officers, agents and employees
shall be primary insurance and not contributing with any other insurance
maintained by DISTRICT Any deductible must be approved by the
DISTRICT before it will be accepted.
23 Proof of Insurance
CONTRACTOR shall furnish DISTRICT through the DISTRICT Manager/Engineer
concurrently with the execution hereof with satisfactory proof of carriage of the insurance
required and adequate legal assurance that each carrier will give DISTRICT at least thirty (30)
days prior notice of the cancellation of any policy during the effective period of this Contract.
The insurance required to be provided herein shall be provided by a domestic carrier
authorized to, and doing business in, the State of California and rated A + XI by Best Key
Rating Guides- Property--Casualty and admitted for coverage in the State of California Insurance
Guarantee Fund.
24 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 One Hundred ($100.00) 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.
25 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 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 sec if applicable.
If CONTRACTOR is engaged in the construction, prosecution, completion or repair of
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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.
26. 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 DISTRICT Manager/Engineer in writing
thereof and give specific reasons therefor DISTRICT Manager/Engineer 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 DISTRICT Manager/Engineer and the concurrence of the
DISTRICT Board shall not be necessary All reasonable expenses of such
procurement incurred by the DISTRICT Manager/Engineer 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
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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
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.
27 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
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28. 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
77 Fair Drive
Costa Mesa, California 92626
Notices required to be given to CONTRACTOR shall be addressed as follows:
MIRAMONTES CONSTRUCTION COMPANY, INC.
P 0 Box 90095
City of Industry, CA 91715-0095
Notices required to be given to CONTRACTOR s sureties shall be addressed as follows:
NOBEL INSURANCE COMPANY
do Lesron Insurance Agency Inc.
1440 North Harbor Blvd., Suite 610
Fullerton, CA 92635
29 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 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
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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.
30 Contractor's Affidavit
After the completion of the work contemplated by this Contract, CONTRACTOR shall
file with the DISTRICT's Manager/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.
31 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.
32. 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
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DISTRICT's Manager/Engineer and all bonds and certificates of insurance required pursuant
hereto have been furnished to and approved by DISTRICT
33 Utility Location
DISTRICT acknowledges its responsibilities with respect to the location of utility
facilities pursuant to California Government Code Section 4215
34 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
35 Governing Law
This Contract and any dispute arising hereunder shall be governed by the law of the State
of California.
36. 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.
37 Changes
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 No
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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 Manager/Engineer 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 DISTRICT
Manager/Engineer given before the work is to be done or before services are rendered. The
DISTRICT Manager/Engineer shall only have authority to order changes when the work is of
a value less than 2% of the contract amount or ONE THOUSAND DOLLARS ($1 000 00)
whichever is greater All other changes must be approved by the Board of Directors.
A. Extra Work Damages. 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 compensation shall be subject to
the approval of the Board of Directors unless within the authority of the
DISTRICT Manager/Engineer
B. Limitation of Damages. CONTRACTOR shall be limited in the damages that
it may recover under this contract. CONTRACTOR shall be limited to extra days
for delay time and shall be limited to the direct costs of completing extra work.
'Direct Costs' shall be those items defined in Section 3-3.2.2 Basis for
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Establishing Costs, Standard Specifications for Public Works Construction, 1994
edition. Excluded from direct costs shall be mark ups on materials, equipment
rentals or other items or expenditures, so-called 'Eichleay damages' including,
but not limited to, home office overhead, lost bonding capacity lost profits, and
lost interest.
38. 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 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
39 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.
40. 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
41 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
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immediately give notice thereof including all relevant information with respect thereto, to
DISTRICT
42. As Built Drawings
CONTRACTOR shall provide DISTRICT's Engineer with drawings of the Construction
in its 'as built' condition.
43 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 DISTRICT's Manager/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 Manager/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.
44 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 for purpose 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 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.
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45 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 control in all respects.
46. 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.
47 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
48. 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
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prior written approval and consent of the DISTRICT and the surety
49 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.
50. 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
51 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,
20
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 Manager/Engineer
52. 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 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 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
21
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.
53 Regional Notification Centers
CONTRACTOR agrees to contact the appropriate regional notification center in
accordance with Government Code Section 4216 before commencing any excavation.
54 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
55 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.
22
(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.
23
Dated this 4th day of November , 19967 COSTA MESA SANITARY DISTRICT
. .I 4 I
By ff /AA S 14 I
Secretary
APPROVED AS TO FORM.
By Et r te-Otet04/
General Counsel
APPROVED AS TO CONTENT
By. Ctzs
District Manager/Engineer
CONTRACTOR
Contractor. Miramontes Const Co ,Inc.
By JJY Ak dt 0 (/ X0.441,OJV
firiam Mir ontes
Its: Vice President
(MUST BE NOTARIZED)
24
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
w -
a
C
ri
EState of California
I; 5
County of Los Angel �'
On 11/4/97 l before me, Yvette C Morales Notary Public
Date Name no Title of Ottic la g Ja Do Notary Public') 3
personally appeared
Miriam Miramontes
gNamels)of Sign r(s)
I A personally known to me-OR-❑proved to me on the basis of satisfactory evidence to be the person(s) i
whose name(s) is/are subscribed to the within instrument
and acknowledged to me that heishe/they executed the r�''
same in his/her/their authorized capac:ty(ies), and that by 5
his/her/their signature(s) on the instrument the person(s),
YVETTE C. MORALES or the entity upon behalf of which the person(s) acted,
COMM. # 11 13880
a .- ,5' executed the instrument.
O r„J NOTARY PUBLIC CALIFORNIA 2�
o I 4. LOS ANGELES COUNTY
WITNESS my hand and official seal. �'
MY COMM. EXPIRES OCT. 17, 2000 y 'S
r5
Sign at No dry Public 3
OPT L
Though the information below is not required by law. it may prove valuable to persons relying on the document and could prevent
I' fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Contract Agreement/ Costa Mesa K
3
Document Date: 11/4/97 Number of Pages: 24
Signer(s) Other Than Named Above: Costa Mesa Sanitary District
el Capacity(ies) Claimed by Signer(s)
Signer's Name: Miriam Miramontes Signer's Name: A
3
19 lA Individual G Individual
Corporate Officer _ Corporate Officer
<G Title(s): Vice President Title(s) 3
❑ Partner—7! Limited l_ General E Partner—n Limited Li General 3
18 0 Attorney-In-Fact = Attorney-in-Fact g
Trustee 0 Trustee
G Guardian or Conservator RIGHT THUMBPRINT ;� rill.
OFSIGNFAI — Guardian or Conservator
A 0 Other Too of'sumo 0 Other Too 01 mumo �I
N 5
Signer Is Representing: Signer Is Representing:
3
Miramontes Connt Co In� 3
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