Contract - Project 317 - 2017-08-24 c
AGREEMENT
#317 President Pump Station Sewer Force Main Replacement
This Agreement (hereinafter referred to as "AGREEMENT") is made and entered into
this 24th day of August, 2017, by and between the COSTA MESA SANITARY DISTRICT,
hereinafter referred to as "DISTRICT," and GCI Construction, Inc., hereinafter referred to as
"CONTRACTOR."
WITNESSETH
That for and in consideration of the promises and agreements hereinafter made and
exchanged, DISTRICT and CONTRACTOR mutually agree as follows:
SCOPE OF THE WORK AND CONTRACT SUM
Scope of the Work. CONTRACTOR shall perform all the work and shall provide and
furnish all labor, materials, tools, expendable equipment, and utility and transportation services
required to construct the #317 President Pump Station Sewer Force Main Replacement,
dated July 3, 2017 (hereinafter referred to as "PROJECT"). This project has been registered
with the Department of Industrial Relations using form PWC-100 pursuant to Labor Code
section 1773.3.
1. Labor and Materials. All of said work to be performed and materials to be
furnished shall be in strict accordance with the plans and specifications entitled #317 President
Pump Station Sewer Force Main Replacement, and CONTRACTOR agrees to do everything
required by this AGREEMENT, the plans and specifications, and the CONTRACT
DOCUMENTS.
All labor, materials, tools, equipment, and services shall be performed under the
direction and administration of, and subject to the approval of, DISTRICT or its authorized
representatives.
2. Contract Sum. DISTRICT agrees to pay, and CONTRACTOR agrees to accept
in full payment for the work above agreed to be done, the sum of six hundred seventy-three
thousand five hundred thirty dollars and no cents ($673,530.00).
NOTICE TO PROCEED AND TIMING
3. Notice to Proceed. No work, services, material, or equipment shall be
performed or furnished under this AGREEMENT unless and until a "Notice to Proceed" has
been given to CONTRACTOR by DISTRICT and all bonds and certificates of insurance required
pursuant hereto have been furnished to and approved by DISTRICT.
4. Time of Completion. CONTRACTOR agrees to commence the work to be
performed under this AGREEMENT on the start of the construction date specified in the "Notice
To Proceed" and to diligently prosecute the work to completion by the completion date specified
in the Notice to Proceed, which the parties agree is forty-five (45)WORKING DAYS.
5. Time of the Essence. Time is of the essence of this AGREEMENT.
6. Liquidated Damages/Additional Actual Damages. It is agreed by the parties
hereto that, in case the total work called for hereunder in all parts and requirements is not
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finished or completed within the number of working days as set forth herein, damage will be
sustained by the DISTRICT and that it is and will be impractical and extremely difficult to
ascertain and determine the actual damage which the DISTRICT will sustain in the event of and
by reason of such delay. It is therefore agreed the CONTRACTOR will pay to the DISTRICT the
sum of one thousand Dollars ($ 1,000.00) per working day for each and every day of delay in
finishing the work in excess of the number of days prescribed in Section 4, and the
CONTRACTOR agrees to pay said liquidated damages herein provided for and further agrees
that the DISTRICT may deduct the amount thereof from any monies due or that may become
due the CONTRACTOR hereunder. Liquidated damages shall be a measurement of the sum to
compensate the public for inconvenience from not having the work completed on time and the
cost of DISTRICT staff to monitor the job beyond the completion date. DISTRICT shall further
be entitled to recover its additional actual damages incurred which shall be supplemental to the
liquidated damages.
Provided strict compliance with Section 21 below is effected, the CONTRACTOR will be
granted an extension of time and will not be assessed with liquidated damages for any portion
of the delay in completion of the work beyond the time named herein due to unforeseeable
causes beyond the control and without the fault or negligence of the CONTRACTOR, including,
but not restricted to, acts of God or of the public enemy, fire, floods, epidemics, quarantine
restrictions, strike, and unsuitable weather, or delays of subcontractors due to such causes.
JOB PROGRESS AND COOPERATION
7. Job Progress. CONTRACTOR agrees to maintain a realistic critical path
analysis throughout the project. CONTRACTOR agrees to meet with DISTRICT's PROJECT
MANAGER or designee on a weekly or other periodic basis, or as requested by DISTRICT to
review job progress. "PROJECT MANAGER" for purposes of this AGREEMENT shall be the
District Engineer or such designee as has been given the authority for this PROJECT in a
written designation. CONTRACTOR agrees to provide DISTRICT with critical path analysis
documentation whenever job progress is impacted so that the completion date may be affected
or whenever delays or other impacts may give rise to CONTRACTOR's claim for additional days
or additional damages. Delay and other claims of damages based on CONTRACTOR's planned
early completion are prohibited.
8. Cooperation. CONTRACTOR agrees to cooperate with DISTRICT's PROJECT
MANAGER or designee and to provide submittals and participate in meetings in a good faith
effort to complete the PROJECT. If disagreements arise, CONTRACTOR agrees to document
the disagreement in accordance with these AGREEMENT provisions and provide DISTRICT
with early notice of the same for later resolution but shall continue to cooperate and prosecute
the work to completion in a diligent manner. Nothing herein shall excuse CONTRACTOR's
strict compliance with Section 21 if additional time or money is sought.
9. CONTRACTOR's Independent Investigation.
(a) No plea of ignorance of conditions that exist or that may hereafter exist, or of
conditions or difficulties that may be encountered in the execution of the work under this
AGREEMENT, as a result of failure to make the necessary independent examinations and
investigations and no plea of reliance on initial investigations or reports prepared by DISTRICT
for purposes of letting this AGREEMENT out to bid will be accepted as an excuse for any failure
or omission on the part of the CONTRACTOR to fulfill in every detail all requirements of said
AGREEMENT, specifications, and plans, nor will such reasons be accepted as a basis for any
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claims whatsoever for extra compensation or for an extension of time except as provided in
Section 21 of this AGREEMENT.
(b) Except as specifically provided in the CONTRACT DOCUMENTS, information
provided for purposes of bidding do not represent "conditions indicated" as being in existence
and are provided for the convenience of the CONTRACTOR in making its own investigation.
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LABOR, WAGE, AND HOURS LAWS
10. Public Work. Notice is provided pursuant to Labor Code Section 1781 that this
is a "public work" as defined in Chapter 1, Part 7, Division 2 of the Labor Code, to which Section
1771 applies. CONTRACTOR shall pay prevailing wages, unless exempt.
11. Contractor/Subcontractors Registered. Contractor and all subcontractors are
registered with the Department of Industrial Relations pursuant to Labor Code Section 1725.5
and paid its annual fee.
12. Prevailing Wage Rates. Pursuant to Labor Code Section 1773.2, copies of the
prevailing rate of per diem wages can be found at http://www.dir.ca.gov/OPRL/PWD/index.htm
and are on file at the DISTRICT, which shall be made available to any interested party upon
request. CONTRACTOR shall post a copy of the determination of the director of the prevailing
rate of per diem wages at each job site. Said per diem wages are deemed to include employer
payments for health and welfare, pension, vacation and travel time, and subsistence pay, all in
accordance with Section 1773.1 of the Labor Code.
13. Payroll Records/ Electronic Records.
(a) The provisions of Section 1776 of the Labor Code regarding the preparation,
maintenance, and filing of payroll records are applicable to this AGREEMENT. Each contractor
and subcontractor shall keep accurate payroll records showing the name, address, social
security number, work classification, straight time and overtime hours worked each day and
week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other
employee employed by him or her in connection with the public work. Certified payroll records
shall be on forms provided by the Division of Labor Standards Enforcement or contain the same
information. THE CONTRACTOR'S AND SUBCONTRACTOR'S PAYROLL RECORDS SHALL
BE SUBMITTED TO DISTRICT ON A WEEKLY BASIS. THE CONTRACTOR SHALL BE
RESPONSIBLE FOR SUBMITTAL OF SUBCONTRACTOR'S PAYROLL RECORDS.
Additionally, CONTRACTOR or subcontractor has 10 days in which to comply subsequent to
receipt of a written notice requesting the records enumerated in Section 1776, subdivision (a), of
the Labor Code. In the event that CONTRACTOR or subcontractor fails to comply within the
10-day period, he or she shall, as a penalty to DISTRICT, forfeit One Hundred Dollars ($100.00)
for each calendar day, or portion thereof, for each worker, until strict compliance is effectuated.
DISTRICT may deduct this penalty from any monies due or that may become due
CONTRACTOR under this AGREEMENT.
(b) Contractor shall submit electronic payment records to the Department of
Industrial Relations.
14. Penalty. CONTRACTOR and any subcontractor under CONTRACTOR shall, as
a penalty to DISTRICT, forfeit not more than Two Hundred Dollars ($200.00) for each calendar
day, or portion thereof, for each worker paid (either by CONTRACTOR or any subcontractor
under CONTRACTOR) less than the prevailing rate set forth herein on the work provided for in
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this AGREEMENT. DISTRICT may deduct the penalty from any monies due or that may
become due CONTRACTOR under this AGREEMENT. The difference between the prevailing
wage rates and the amount paid to each worker for each calendar day, or portion thereof, for
which each worker was paid less than the prevailing wage rate shall also be paid to each worker
by CONTRACTOR or subcontractor, in accordance with Section 1775 of the Labor Code of the
State of California.
15. Apprentices. If applicable, the provisions of Labor Code Section 1777.5
requiring the use of apprentices in certain ratios to journeymen on the PROJECT are hereby
imposed upon CONTRACTOR.
16. Legal Day's Work. In the performance of this AGREEMENT, not more than
eight (8) hours shall constitute a day's work, and the CONTRACTOR shall not require more
than eight (8) hours of labor in a day from any person employed by him hereunder except as
provided in Labor Code Section 1815. CONTRACTOR shall conform to Article 3, Chapter 1,
Part 7 (Sections 1810 et seq.), of the Labor Code of the State of California, and it is agreed that
the CONTRACTOR shall forfeit to the DISTRICT as a penalty the sum of Twenty-Five Dollars
($25.00) for each worker employed in the execution of this AGREEMENT by the
CONTRACTOR or any subcontractor for each calendar day during which any worker is required
or permitted to labor more than eight (8) hours in any one (1) calendar day and forty (40) hours
in any one (1) week in violation of said article. DISTRICT may deduct this penalty from any
sums owed pursuant to this AGREEMENT.
PROGRESS PAYMENTS AND RETENTION
18. Progress Payments. Pursuant to Public Contract Code Section 7201, prior to
the fifteenth (15th) day of the month next following the commencement of the work, there shall
be paid to CONTRACTOR a sum equal to ninety-five percent (95%) of the value of the work
completed since the commencement of the work as determined by DISTRICT and thereafter
prior to the fifteenth (15th) day of each successive month as the work progresses.
CONTRACTOR shall be paid such sum as will bring the payments up each month to ninety-five
percent (95%) of the value of the work completed since the commencement of the work as
determined by DISTRICT, less all previous payments and authorized deductions, provided that
CONTRACTOR submits his request for payment prior to the last Wednesday of each preceding
month. Pursuant to Public Contract Code 7107, DISTRICT shall make the final payment, if
unencumbered, or any part thereof unencumbered, within sixty (60) days after the date of
completion. Notwithstanding the foregoing, CONTRACTOR shall provide DISTRICT with all
documentation required by this AGREEMENT, including the Final Closeout Agreement and
Release of All Claims, as well as any other documents required by the CONTRACT
DOCUMENTS such as as-builts, red-line plans, manufacturers and specific guarantees, and
owner's manuals prior to receiving final payment. Payments shall be made on demands drawn
in the manner required by law, accompanied by a certificate signed by the Project Manager,
stating that the work for which payment is demanded has been performed in accordance with
the terms of the AGREEMENT, and that the amount stated in the certificate is due under the
terms of the AGREEMENT. Partial payments on the AGREEMENT price shall not be
considered as an acceptance of any part of the work. Nothing herein shall limit DISTRICT's
right to withhold one hundred fifty percent (150%) of disputed amounts in the event of a good
faith dispute.
19. Prompt Payments. DISTRICT agrees to promptly make progress payments on
undisputed and properly submitted payment requests within thirty (30) days and to comply with
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the provisions of Public Contract Code Section 20104.50.
20. Retention Securities. Pursuant to California Public Contract Code Section
22300, CONTRACTOR will be entitled to post approved securities with the DISTRICT or an
approved financial institution in order to have the DISTRICT release funds retained by the
DISTRICT to insure performance of the AGREEMENT.
CHANGE ORDERS/EXTRA TIME/EXTRA WORK
21. Request for Extra Time or Additional Compensation. The following
provisions must be strictly complied with to obtain additional time to complete the job or to
obtain additional compensation:
(a) Request for Change Order — Additional Time. The CONTRACTOR shall
promptly notify the DISTRICT of any delay and shall, within ten (10) days from the beginning of
any such delay, notify the DISTRICT in writing of the cause of the delay, and the DISTRICT
shall extend the time for completing the work if in its judgment the cause so merits. The
DISTRICT's determination on this matter shall be final and conclusive on the parties hereto.
CONTRACTOR shall be required to submit a Request for Change Order, as set forth in this
AGREEMENT, to the DISTRICT'S PROJECT MANAGER within ten (10) days of the beginning
of such a delay. No adjustment shall be allowed for such delay unless there is strict compliance
with this contractual provision. CONTRACTOR's remedy shall be limited to the extra days
granted and to any damages that it may be entitled to using the formula agreed to by the parties
for all damages as provided in Section 22.
(b) Request for Change Order—Additional Compensation Sought.
(i) Should CONTRACTOR claim that the DISTRICT is demanding extra work
from it or consider any work demanded of it to be outside the requirements of this
AGREEMENT or if it considers any instruction, ruling, or decision of the PROJECT
MANAGER to be unfair, he shall within ten (10) days after any such demand is made, or
instruction, ruling, or decision is given, file a written protest with the PROJECT
MANAGER stating clearly and in detail his objections and the reasons therefor. Except
for such protests and objections as are made of record, in the manner and within the
time above stated, the CONTRACTOR shall be deemed to have waived, and does
hereby waive, all claims for extra work, damages, and extensions of time on account of
demands, instructions, rulings, and decisions of the District Engineer.
(ii) Should CONTRACTOR claim that additional compensation is due it
because of an unforeseen condition, CONTRACTOR shall bring that to DISTRICT's
attention promptly and within ten (10) days and shall submit a written request for change
order within ten (10) days to DISTRICT.
(c) Request for Change Order— DISTRICT Form to Be Used. DISTRICT's Request
for Change Order form, which is attached hereto as part of this AGREEMENT, shall be the form
that must be submitted in a timely fashion for a request for either additional time or additional
compensation. By initialing, the CONTRACTOR specifically agrees to use said form for those
purposes and understands that, if he does not submit that form in a timely manner, he waives
the right to request additional time or compensation. No oral modifications or other forms of
communication shall be accepted as compliance with this provision. The written request for
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change order requirement cannot be waived.
Contractor's Initi Is
(d) Change Order. Should DISTRICT agree that a change order is warranted for
either additional time or compensation, a written change order shall be executed. If DISTRICT
does not agree to the change order, and CONTRACTOR has provided timely notices and
submitted its written request for change order in a timely manner and on the proper form,
CONTRACTOR will have preserved the issue for later resolution in compliance with other
procedures set forth in this AGREEMENT or as the law may otherwise allow.
(e) Change Order Authority. The following authority is given to approve Change
Orders:
(i) Change Orders for Extra Time. The District Manager shall have the
authority to grant extra days without limit.
(ii) Change Orders for Extra Compensation. The District Manager shall have
the authority to make change orders up to an aggregate amount of Ten Percent(10%)of
the original contract amount or Fifteen Thousand Dollars ($15,000), whichever is
greater.
22. Damages / Extra Work Compensation. The parties have agreed to modify the
formula for damages set forth in the Standard Specifications for Public Works Construction.
The parties agree that the following damage formula shall be used to measure all of
CONTRACTOR's damages or extra work required by this PROJECT. CONTRACTOR shall be
limited to the following:
Direct costs Mark-up
Labor 20%
Materials 15%
Equipment Rental 15%
Other Items 15%
Subcontracted work 10% (first $5,000)
Subcontracted work 5% (work in excess of first $5,000)
Specialty Subcontracting
(required by extra work) 5% (Provided at least three (3)
competitive bids are obtained
and CONTRACTOR selected
the lowest bidder)
Excluded from recovery shall be so-called "Eichleay damages," including, but not limited
to, home office overhead, insurance and bonding costs, lost bonding capacity, lost profits, and
lost interest.
CONTRACTOR acknowledges that his recovery for damages or extra work is limited as
provided in this Section.
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SUBCONTRACTING
23. Subcontracting. CONTRACTOR acknowledges that he or she is aware of the
provisions of the "Subletting and Subcontracting Fair Practices Act" (Public Contract Code
Sections 4100 et seq.) and agrees to comply with all applicable provisions thereof. If any part of
the work to be done under this AGREEMENT is subcontracted, the subcontract shall be in
writing and shall provide that all work to be performed thereunder shall be performed in
accordance with this AGREEMENT. Upon request, certified copies of any or all subcontracts
shall be furnished to DISTRICT. The subcontracting of any or all of the work to be done will in no
way relieve CONTRACTOR of any part of his responsibility under the AGREEMENT. Pursuant
to Public Contract Code Section 4110, CONTRACTOR's violation of any of the provisions of the
Subletting and Subcontracting Fair Practices Act violates this AGREEMENT, and DISTRICT may
cancel this AGREEMENT or assess CONTRACTOR a penalty of not more than 10 percent
(10%) of the subcontract involved. DISTRICT may deduct this penalty from any monies due or
that may become due to CONTRACTOR for work performed under this AGREEMENT.
All persons engaged in the work, including subcontractors, will be considered as
employees of CONTRACTOR. CONTRACTOR will be held responsible for their work.
DISTRICT will deal directly with and make all payments to CONTRACTOR.
STOP NOTICES
24. Additional Costs. Pursuant to Civil Code Section 9358, upon receipt of a stop
notice, DISTRICT shall withhold from payment to CONTRACTOR sufficient funds due, or to
become due, to pay the claim stated in the stop notice and provide for DISTRICT's reasonable
costs of litigation. One hundred twenty-five percent (125%) of the amount of the claim stated in
the stop notice shall be a reasonable amount to withhold. In addition to the remedies authorized
by law, CONTRACTOR shall reimburse DISTRICT for administrative expenses incurred in
processing Notices to Withhold, Stop Notices, or similar legal documents arising out of a failure
of CONTRACTOR to pay for labor or materials. Said obligation shall be provided for in
CONTRACTOR's payment bond. DISTRICT shall have the right to deduct any such expenses
from amounts due or to become due to CONTRACTOR under this AGREEMENT.
COMPLETION
25. CONTRACTOR'S Waiver. CONTRACTOR agrees to execute a Final Close Out
Agreement and Release of All Claims on DISTRICT's form (attached). The execution by
CONTRACTOR of the Final Close Out Agreement and Release of All Claims shall constitute a
waiver of all claims against DISTRICT under or arising out of this AGREEMENT unless
otherwise stated in said document.
26. Guarantees. CONTRACTOR shall, and hereby does, guarantee all work for a
period of one (1)year after the date of acceptance of the work by the DISTRICT and shall repair
and replace any and all such work, together with any other work which may be displaced in so
doing, that may prove defective in workmanship and/or materials within the one (1) year period
from date of acceptance, without expense whatsoever to the DISTRICT, ordinary wear and tear
and usual abuse or neglect excepted. In the event of failure to comply with the aforementioned
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conditions within five (5) days after being notified in writing, the DISTRICT is hereby authorized
to proceed to have the defects repaired and made good at the expense of the CONTRACTOR,
who shall pay the cost and charges therefor immediately on demand. This guarantee shall be in
addition to any manufacturer or specific guarantees that may be required. CONTRACTOR shall
provide those manufacturer and specific guarantees before CONTRACTOR may claim
entitlement to final payment.
INDEMNIFICATION
27. Indemnity. CONTRACTOR shall indemnify, defend with legal counsel approved
by DISTRICT, and hold harmless DISTRICT, and its officers, officials, employees, and
volunteers, from and against all liability, loss, damage, expense, and cost (including without
limitation reasonable legal counsel fees, expert fees, and all other costs and fees of litigation) of
every nature arising out of or in connection with CONTRACTOR's negligence, recklessness or
willful misconduct in the performance of work hereunder, or its failure to comply with any of its
obligations contained in this AGREEMENT, except such loss or damage which is caused by the
sole or active negligence or willful misconduct of the DISTRICT. Should conflict of interest
principles preclude a single legal counsel from representing both DISTRICT and
CONTRACTOR, or should DISTRICT otherwise find CONTRACTOR's legal counsel
unacceptable, then CONTRACTOR shall reimburse the DISTRICT its costs of defense,
including without limitation reasonable legal counsel fees, expert fees, and all other costs and
fees of litigation. The CONTRACTOR shall promptly pay any final judgment rendered against
the DISTRICT and its officers, officials, employees, and volunteers with respect to claims
determined by a trier of fact to have been the result of the CONTRACTOR's negligent, reckless
or wrongful performance. It is expressly understood and agreed that the foregoing provisions
are intended to be as broad and inclusive as is permitted by the law of the State of California
and will survive termination of this AGREEMENT.
CONTRACTOR's obligations under this Section apply regardless of whether or not such
claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense,judgment,
civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However,
without affecting the rights of DISTRICT under any provision of this AGREEMENT,
CONTRACTOR shall not be required to indemnify and hold harmless DISTRICT for liability
attributable to the active negligence of DISTRICT, provided such active negligence is
determined by agreement between the parties or by the findings of a court of competent
jurisdiction. In instances where DISTRICT is shown to have been actively negligent and where
DISTRICT's active negligence accounts for only a percentage of the liability involved, the
obligation of CONTRACTOR will be for that entire portion or percentage of liability not
attributable to the active negligence of DISTRICT.
Notwithstanding any limits provided for indemnification, CONTRACTOR's duty to defend
is broader. CONTRACTOR agrees to provide DISTRICT with a defense, with counsel
reasonably acceptable to DISTRICT, or pay DISTRICT's costs of defense upon service of any
complaint, petition or other pleading that requires DISTRICT to defend itself in any proceeding
arising out of the work described in this AGREEMENT. Said obligation shall not extend to
disputes between CONTRACTOR and DISTRICT.
INSURANCE
28. Insurance. Without limiting CONTRACTOR's indemnification of DISTRICT, and
prior to commencement of work, CONTRACTOR shall obtain, provide, and maintain at its own
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expense during the term of this AGREEMENT policies of insurance of the types and amounts
described below and in a form satisfactory to DISTRICT.
General liability insurance. CONTRACTOR shall maintain commercial general liability
insurance with coverage at least as broad as Insurance Services Office Form CG 00 01, in an
amount not less than $1,000,000.00 per occurrence, $2,000,000.00 general aggregate, for
bodily injury, personal injury, and property damage, including, without limitation, blanket
contractual liability, and a $2,000,000.00 completed operations aggregate.
Automobile liability insurance. CONTRACTOR shall maintain automobile insurance
at least as broad as Insurance Services Office Form CA 00 01 covering bodily injury and
property damage for all activities of the CONTRACTOR arising out of or in connection with work
to be performed under this AGREEMENT, including coverage for any owned, hired, non-owned,
or rented vehicles, in an amount not less than $1,000,000.00 combined single limit for each
accident.
Umbrella or excess liability insurance. CONTRACTOR shall obtain and maintain an
umbrella or excess liability insurance policy with limits of not less than $4,000,000.00 that will
provide bodily injury, personal injury, and property damage liability coverage at least as broad
as the primary coverages set forth above, including commercial general liability and employer's
liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond in the event that any primary
insurance that would otherwise have applied proves to be uncollectable in whole or in
part for any reason;
• Pay on behalf of wording as opposed to reimbursement;
• Concurrency of effective dates with primary policies; and
• Policies shall "follow form" to the underlying primary policies.
• Insureds under primary policies shall also be insureds under the umbrella or excess
policies.
Workers' compensation insurance. CONTRACTOR shall maintain Workers'
Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at
least $1,000,000.00) for CONTRACTOR's employees in accordance with the laws of the State
of California, Section 3700 of the Labor Code. In addition, CONTRACTOR shall require each
subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability
Insurance in accordance with the laws of the State of California, Section 3700 of the Labor
Code, for all of the subcontractor's employees.
CONTRACTOR shall submit to DISTRICT, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of DISTRICT and its officers, agents, employees,
and volunteers.
Builder's risk insurance. Upon commencement of construction and with approval of
CITY, CONTRACTOR shall obtain and maintain builder's risk insurance as specified below.
The named insureds shall be CONTRACTOR, all subcontractors (excluding those solely
responsible for design work) of any tier, suppliers, and CITY and its officers, officials,
employees, and agents. CONTRACTOR shall not be required to maintain property insurance
for any portion of the PROJECT following transfer of control thereof to CITY.
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Policy shall be provided for replacement value on an "all risk" basis. There shall be no
coinsurance penalty provision in any such policy. Policy must include: (1) coverage for any
ensuing loss from faulty workmanship, nonconforming work, or omission or deficiency in design
or specifications; (2) coverage against machinery accidents and operational testing; (3)
coverage for removal of debris and insuring the buildings, structures, machinery, equipment,
materials, facilities, fixtures, and all other properties constituting a part of the PROJECT; (4)
transit coverage, including ocean marine coverage (unless insured by the supplier), with n 5
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limits sufficient to insure the full replacement value of any key equipment item; and O coverage
with sub-limits sufficient to insure the full replacement value of any property or equipment stored
either on or off the site. Such insurance shall be on a form acceptable to CITY to ensure
adequacy of terms and sub-limits.
Proof of insurance. CONTRACTOR shall provide certificates of insurance to
DISTRICT as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and endorsement
must be approved by DISTRICT's risk manager prior to commencement of performance.
Current certification of insurance shall be kept on file with DISTRICT at all times during the term
of this AGREEMENT. DISTRICT reserves the right to require complete, certified copies of all
required insurance policies at any time.
Duration of coverage. CONTRACTOR shall procure and maintain for the duration of
the AGREEMENT insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the work hereunder by
CONTRACTOR or his agents, representatives, employees, or subcontractors. CONTRACTOR
must maintain general liability and umbrella or excess liability insurance for as long as there is a
statutory exposure to completed operations claims. DISTRICT and its officers, officials,
employees, and agents shall continue as additional insureds under such policies.
DISTRICT's rights of enforcement. In the event any policy of insurance required
under this AGREEMENT does not comply with these requirements or is canceled and not
replaced, DISTRICT has the right but not the duty to obtain the insurance it deems necessary,
and any premium paid by DISTRICT will be promptly reimbursed by CONTRACTOR or
DISTRICT will withhold amounts sufficient to pay premium from CONTRACTOR payments. In
the alternative, DISTRICT may cancel this AGREEMENT.
Acceptable insurers. All insurance policies shall be issued by an insurance company
currently authorized by the Insurance Commissioner to transact business of insurance in the
State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide,
unless otherwise approved by the DISTRICT's Counsel.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this
AGREEMENT shall be endorsed to waive subrogation against DISTRICT and its elected or
appointed officers, agents, officials, employees, and volunteers or shall specifically allow
CONTRACTOR or others providing insurance evidence in compliance with these specifications
to waive their right of recovery prior to a loss. CONTRACTOR hereby waives its own right of
recovery against DISTRICT and shall require similar written express waivers and insurance
clauses from each of its subconsultants.
Enforcement of AGREEMENT provisions (non estoppel). CONTRACTOR
acknowledges and agrees that any actual or alleged failure on the part of the DISTRICT to
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inform CONTRACTOR of non-compliance with any requirement imposes no additional
obligations on the DISTRICT, nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits
contained in this Section are not intended as a limitation on coverage, limits or other
requirements, or a waiver of any coverage normally provided by any insurance. Specific
reference to a given coverage feature is for purposes of clarification only as it pertains to a given
issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other
coverage, or a waiver of any type.
Notice of cancellation. CONTRACTOR agrees to oblige its insurance agent or broker
and insurers to provide DISTRICT with a thirty (30) day notice of cancellation (except for
nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each
required coverage.
Additional insured status. General liability policies shall provide or be endorsed to
provide that DISTRICT and its officers, officials, employees, and agents shall be additional
insureds under such policies. This provision shall also apply to any excess liability policies.
DISTRICT's right to revise requirements. The DISTRICT reserves the right, at any
time during the term of the AGREEMENT, to change the amounts and types of insurance
required by giving the CONTRACTOR a ninety (90)-day advance written notice of such change.
If such change results in substantial additional cost to the CONTRACTOR, the DISTRICT and
CONTRACTOR may renegotiate CONTRACTOR's compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved
by DISTRICT. DISTRICT reserves the right to require that self-insured retentions be eliminated,
lowered or replaced by a deductible. Self-insurance will not be considered to comply with these
specifications unless approved by DISTRICT.
Timely notice of claims. CONTRACTOR shall give DISTRICT prompt and timely
notice of claims made or suits instituted that arise out of or result from CONTRACTOR's
performance under this AGREEMENT, and that involve or may involve coverage under any of
the required liability policies.
Additional insurance. CONTRACTOR shall also procure and maintain, at its own cost
and expense, any additional kinds of insurance which in his/her/its own judgment may be
necessary for its proper protection and prosecution of the work.
29. Workers' Compensation.
A. CONTRACTOR shall carry Workers' Compensation Insurance, and require all
subcontractors to carry Workers' Compensation Insurance, as required by the Labor Code of
the State of California. CONTRACTOR, by executing this AGREEMENT, hereby certifies:
"I am aware of the provisions of Section 3700 of the Labor Code which
require every employer to be insured against liability for Workers'
Compensation or to undertake self-insurance in accordance with the
provisions of that code, and I will comply with such provisions before
commencing the performance of the work of this AGREEMENT."
B. CONTRACTOR acknowledges that it is unlawful and a crime to intentionally
HGSD 2016 CIP A-11 Agreement
•
make false statements about employees that misclassify their job duties to obtain lesser
premium costs or for other improper purposes. CONTRACTOR agrees that if it makes false
statements about its employees for the purpose of obtaining lower workers' compensation
premiums or for other unlawful purposes, it shall be considered a material breach of this
AGREEMENT.
30. Bonds. Within the time period set forth in the CONTRACT DOCUMENTS and
prior to commencing the work on the PROJECT, the CONTRACTOR shall file with the
DISTRICT a good and sufficient labor and material payment bond (Payment Bond) and a
performance bond (Performance Bond) in the amount of one hundred percent (100%) of the
Contract Sum covering performance of the work other than the professional design services
portion of the work. The Performance Bond and Payment Bond shall be in the form required by
the CONTRACT DOCUMENTS. The amounts of the Payment Bond and Performance Bond
shall be increased as, when, and in the amount of any Change Orders that are executed
increasing the Contract Sum, the CONTRACTOR shall, upon request by the DISTRICT, provide
evidence of such increases. Should the Payment Bond or Performance Bond or any Surety on
such bond become or be determined by the DISTRICT to be insufficient, it shall be replaced
within ten (10) days by a bond that fully complies with the requirements of this Section. No
further payments to the CONTRACTOR for the work performed shall be made or due until the
CONTRACTOR has fully complied with the requirements of this Section.
Duration. The Payment Bond shall remain in effect until acceptance of the work by the
DISTRICT and payment of all stop notices and claims by the CONTRACTOR or the
subcontractors, of any tier, have been satisfied. The Performance Bond shall remain in effect
and assure faithful performance of all the CONTRACTOR's obligations under the CONTRACT
DOCUMENTS, including, without limitation, all obligations that survive final completion or
termination, such as, but not limited to, CONTRACTOR's warranty, commissioning, and
indemnity obligations.
Surety. At the time the AGREEMENT is signed, and at all times thereafter until final
payment has been made by the DISTRICT, the Surety on the Payment Bond shall be an
Admitted Surety, and the Surety on the Performance Bond shall be a licensed Surety in good
standing with the California Department of Insurance and have an A.M. Best's Insurance Rating
of not less than A-: VI.
Premiums. The premiums for all bonds are included in the Contract Sum and shall be
paid by the CONTRACTOR.
Obligee. The Payment Bond and Performance Bond shall each name the DISTRICT as
obligee. All bonds purchased by the subcontractors shall name the CONTRACTOR and the
DISTRICT as dual obligees.
No exoneration. Changes, Change Orders, Unilateral Change Orders, Field Orders,
modifications, and adjustments to the Contract Sum or completion date shall in no way release
or exonerate the CONTRACTOR or its Surety from their obligations, and notice thereof shall be
waived by the Surety. The foregoing provision shall be included in the terms of the Payment
Bond, Performance Bond, and any bonds obtained by the subcontractors.
Communications. The DISTRICT shall have the right to communicate with the
CONTRACTOR's Sureties with respect to matters that are related to the CONTRACTOR's
performance of its obligations under the CONTRACT DOCUMENTS. CONTRACTOR shall be
HGSD 2016 CIP A-12 Agreement
provided with a copy of all such written communications. Such communications shall not
create, or be interpreted as creating, any contractual relationship between the DISTRICT and
the Surety.
No limitation. The requirements of this Section pertaining to the Performance Bond
and the Payment Bond shall be without limitation to any other obligations the CONTRACTOR
may have under applicable law to provide bonding for the benefit of and to assure payment to
the subcontractors or subconsultants performing the work for the PROJECT.
TERMINATION
31. Termination.
A. If CONTRACTOR should fail to comply with any of the provisions hereof, in the
event CONTRACTOR should become the subject of a proceeding under state or federal law for
relief of debtors, or if CONTRACTOR makes an assignment for the benefit of creditors,
DISTRICT shall have the right to hold CONTRACTOR in default and cancel this AGREEMENT
in whole or in part.
B. Should CONTRACTOR, at any time during the progress of the work, refuse or
neglect to supply sufficient material or labor, or fail in compliance with any provision of this
AGREEMENT, DISTRICT shall have the right, without prejudice to any other right or remedy it
may have, to provide such materials and labor, or make good such deficiencies as DISTRICT
may deem expedient after three (3) day notice in writing, delivered or mailed to CONTRACTOR
at his last address on file with DISTRICT, and CONTRACTOR shall be liable for the cost and
expense thereof which may be deducted by DISTRICT from any money due or that may
become due CONTRACTOR.
C. Without limiting any rights which DISTRICT may have by reason of any default
by CONTRACTOR hereunder, DISTRICT reserves the right to terminate this AGREEMENT in
whole or in part at its convenience. In such event DISTRICT shall compensate CONTRACTOR,
subject to deduction for previous payments and authorized deductions, by: (i) reimbursing
CONTRACTOR for all actual expenditures and costs incurred in performing under this
AGREEMENT, (ii) reimbursing CONTRACTOR for all expenditures made and costs incurred
with DISTRICT's prior written approval in settling or discharging outstanding commitments
entered into by CONTRACTOR in performing under this AGREEMENT, and (iii) paying
CONTRACTOR as a profit, insofar as a profit is realized hereunder, an amount equal to the
profit on the entire AGREEMENT estimated at the time of termination, multiplied by the
percentage of completion of the work. In no event, however, will the compensation to
CONTRACTOR exceed the total AGREEMENT price less payments previously made and less
the AGREEMENT price of work not terminated. Upon receipt of any notice of termination,
CONTRACTOR shall, unless the notice otherwise directs, (i) immediately discontinue the work
and the placing of all orders and subcontracts in connection with this AGREEMENT, (ii)
immediately cancel all existing orders and subcontracts made hereunder, and (iii) immediately
transfer to DISTRICT all materials, supplies, work-in-process, appliances, facilities, equipment,
machinery, and tools acquired by CONTRACTOR in connection with the performance of this
AGREEMENT.
CLAIM RESOLUTION
32. Resolution of Claims. For all claims that are Three Hundred Seventy-Five
Thousand Dollars ($375,000.00) or less, the provisions of Public Contracts Code Sections
HGSD 2016 CIP A-13 Agreement
20104 et seq. (Article 1.5 - Resolution of Construction Claims) shall be followed. For claims for
money or time submitted pursuant to Public Contract Code 9204, the provisions of that section
shall apply and a meet and confer process, followed by nonbinding mediation, shall occur.
33. Notice to Contractor of Claims. DISTRICT shall provide notice to
CONTRACTOR upon receipt of any third-party claim related to the AGREEMENT.
CONTRACT DOCUMENTS AND INTERPRETATION ,
34. (a) Other Documents Included. It is further agreed by the parties hereto that
the following documents are incorporated herein by reference and are to be read and construed
together as the full, complete, and integrated terms of this AGREEMENT and, collectively with
this AGREEMENT, may be referred to as the CONTRACT DOCUMENTS:
A. Notice Inviting Bids
B. Instructions to Bidders
C. Proposal
D. Scope of Work
E. District Request for Change Order/Change Order
F. Notice to Proceed
G. Labor and Materials Bond
H. Performance Bond
I. Final Closeout Agreement
J. Plan Drawings (#317 President Pump Station Sewer Force
Main Replacement)
K. General Conditions
L. Special Conditions
M. General Requirements
(b) Interpretation of Incorporated Documents. In the event of any conflict,
inconsistency or incongruity between the provisions of this AGREEMENT and the
provisions of any document listed in Subsection (a) above, the provisions of this
AGREEMENT shall prevail unless a contrary intent is shown. This
AGREEMENT shall be interpreted as though it had been drafted by the
DISTRICT and the CONTRACTOR equally. This AGREEMENT shall be
interpreted according to the laws of the State of California.
35. Integration/No Oral Modifications. This AGREEMENT integrates all
understandings of the parties. Any amendment to this AGREEMENT must be made in writing
and signed by the parties with legal authority to execute the same. CONTRACTOR is aware
that DISTRICT is a special district and that, pursuant to Health and Safety Code Section 6487,
contract amendments may only be entered into by compliance with those formalities.
Notwithstanding the above, requests for additional time or compensation may be made by
following the procedures provided for in this AGREEMENT.
36. Effect of Invalidity. The invalidity in whole or in part of any provisions hereof
shall not affect the validity of any other provision.
MISCELLANEOUS
HGSD 2016 CIP A-14 Agreement
37. Discrimination, Minorities, Aliens. The CONTRACTOR shall not discriminate
nor allow its employees, agents, principals, or subcontractors to discriminate against any
employee or applicant for employment on the basis of race, religious creed, national origin, or
sex. CONTRACTOR shall take affirmative steps to hire qualified minority individuals when job
opportunities occur and utilize local business firms when possible and when consistent with
California Constitution Article 1, Section 31 (a) [Proposition 209].
38. Equal Employment Opportunity. CONTRACTOR shall comply with all
provisions of Executive Order 11246, entitled "Equal Employment Opportunity" and amended by
Executive Order 11375, and as supplemented in Department of Labor Regulations (41 CFR part
60).
39. Druq-Free Work. CONTRACTOR agrees to provide a drug-free workplace in
accordance with 24 CFR part 24, sub-part F. Under 24 CFR part 24, sub-part F, the
CONTRACTOR will provide certification in writing that it will provide a drug-free workplace by:
(a) Publicizing a statement notifying employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance is
prohibited in the workplace, and specifying the action it will take against
employees for violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform employees
about:
1. Degrees of drug abuse in the workplace;
2. The policy of maintaining a drug-free workplace;
3. Any available drug counseling, rehabilitation, and employee assistance
programs; and
4. The penalties which may be imposed on employees for drug abuse violations
occurring in the workplace.
(c) Making it a requirement that every employee to be engaged in the performance
of the AGREEMENT be given a copy of the statement required by Subsection
(a);
(d) Notifying employees in the statement required by Subsection (a) that as a
condition of employment under the AGREEMENT the employee will:
1. Abide by the term of the statement; and
2. Notify the employer in writing of any conviction for a violation of a criminal
drug statute occurring in the workplace no later than five (5) calendar days
after such conviction.
(e) Notifying DISTRICT in writing within ten (10) calendar days after receiving notice
under Subsection (d)(2)from an employee or otherwise receiving actual notice of
such conviction. Employer of said convicted employee must provide notice,
including conviction title, to the DISTRICT;
(f) Taking one of the following actions, within thirty (30) calendar days of receiving
notice under Subsection (d)(2), with respect to any employee who is so
convicted:
1. Taking appropriate action against such an employee, up to and including
HGSD 2016 CIP A-15 Agreement
termination, consistent with the requirements of the Rehabilitation Act of
1973, as amended; or
2. Requiring such employee to participate satisfactorily in a drug abuse
assistance or rehabilitation program approved for such purposes by a federal,
state, or local health, law enforcement, or other appropriate agency.
III (g) Making a good faith effort to continue to maintain a drug-free workplace through
implementation of Sections (a), (b), (c), (d), (e), and (f).
40. Permits. The CONTRACTOR shall obtain from the DISTRICT, County, City,
State, or other responsible public agencies all licenses and permits, and pay all fees related
thereto, necessary to complete the job.
41. Assignment. No assignment by the CONTRACTOR of this AGREEMENT or
any part hereof, or of funds to be received hereunder, will be recognized by the DISTRICT
unless such assignment has had prior written approval and consent of the DISTRICT and the
Surety.
42. Safety and Site Condition. CONTRACTOR shall perform all operations with
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.
43. Utility Location. DISTRICT acknowledges its responsibilities with respect to
locating facilities pursuant to California Government Code Section 4215.
44. Trenching. If this AGREEMENT involves digging trenches or other excavations
that extend deeper than four (4) feet below the surface, CONTRACTOR shall promptly, and
before the following conditions are disturbed, notify the DISTRICT in writing, of any:
(a) Material that the CONTRACTOR believes may be material that is hazardous
waste, as defined in Section 25117 of the Health and Safety Code, that is
required to be removed to a Class I, Class II or Class III disposal site in
accordance with provisions of existing law.
(b) Subsurface or latent physical conditions at the site differing from those indicated.
(c) Unknown physical conditions at the site of any unusual nature, different
materially from those ordinarily encountered and generally recognized as
inherent in work of the character provided for in the AGREEMENT.
The DISTRICT shall promptly investigate the conditions, and if it finds that the conditions
do materially so differ, or do involve hazardous waste, and cause a decrease or increase in the
CONTRACTOR's cost of, or the time required for, performance of any part of the work shall
issue a change order in accordance with the procedures described in this AGREEMENT.
In the event that a dispute arises between the DISTRICT and the CONTRACTOR as to
whether the conditions materially differ, or involve hazardous waste, or cause a decrease or
increase in the CONTRACTOR's cost of, or time required for, performance of any part of the
HGSD 2016 CIP A-16 Agreement
work, the CONTRACTOR shall not be excused from any scheduled completion date provided
for by the AGREEMENT but shall proceed with all work to be performed under the
AGREEMENT. The CONTRACTOR shall retain any and all rights provided either by this
AGREEMENT or by law whichpertain to the resolution of disputes and protests between the
III
P
contracting parties provided that CONTRACTOR complies with Section 21 when asserting such
claim.
45. Notices. The parties hereto agree that all formal notices required by this
AGREEMENT may be provided to the following persons at the following addresses by sending
the same by certified or registered mail as follows:
DISTRICT: Costa Mesa Sanitary District
628 W. 19th Street
Costa Mesa, CA 92627
CONTRACTOR: GCI Construction, Inc.
1031 Calle Recodo, Suite D
San Clemente, CA 92673
46. Gratuities. CONTRACTOR warrants that neither it nor any of its employees,
agents, or representatives has offered or given any gratuities to DISTRICT's employees, agents
or representatives with a view toward securing this AGREEMENT or securing favorable
treatment with respect thereto.
47. Conflict of Interest. CONTRACTOR warrants that he has no blood or marriage
relationship with, and that it is not in any way associated with, any architect, engineer or other
preparer of the plans and specifications for this PROJECT.
48. Copeland "Anti-Kickback" Act. If applicable to this AGREEMENT,
CONTRACTOR and its subcontractors shall comply with the provisions of the Copeland "Anti-
Kickback" Act (18 U.S.C. Section 874), as supplemented in Department of Labor regulations,
which Act provides that each contractor shall be prohibited from including, by any means, any
person employed in the construction, completion or repair of any public work to give up any part
of the compensation to which he is otherwise entitled.
49. Attorney's Fees. In any action or proceeding brought by either party against the
other party arising out of or in any way connected to this AGREEMENT, or where any provision
hereof is validly asserted as a defense, the parties shall bear their own attorney's fees, costs,
and expenses. Nothing in this provision shall excuse CONTRACTOR's duty to provide
DISTRICT with a defense at CONTRACTOR's cost when DISTRICT receives a complaint,
petition or other pleading from a third party requiring DISTRICT to defend itself.
Notwithstanding the foregoing, costs and attorney's fees shall be available pursuant to Code of
Civil Procedure Section 386.6 in connection with an interpleader.
50. Assignment of Rights. Pursuant to Section 7103.5 of the Public Contract
Code, in entering into a public works contract or a subcontract to supply goods, services or
materials pursuant to a public works contract, the CONTRACTOR or subcontractor offers and
agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it
may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act
(Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and
HGSD 2016 CIP A-17 Agreement
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
CONTRACTOR, without further
the time the awardingbody
tenders final payment to the CO ,
at P Y
acknowledgment
by the parties.
51. SCAQMD and CARB Compliance. CONTRACTOR agrees to comply with all
South Coast Air Quality Management District (SCAQMD) and California Air Resources Board
(CARB) requirements, including, but not limited to, compliance with CARB Regulations limiting
idling of self-propelled diesel-fueled on-road and off-road vehicles and equipment (25 HP and
up) to no more than five (5) consecutive minutes as specified in Title 13 of the California Code
of Regulations, section 2449 (d)(3), Idling.
52. Mined Construction Materials. CONTRACTOR shall not purchase mined
construction material except from a mining operation that is currently identified in the list
published pursuant to subdivision (b) of Section 2717 of the Public Resources Code. Refer to
the current 3098 list for qualified mining operations at
www.co n s rv.ca.gov/OM R/a b_3098_I i st/cu rre nt_I i st.
IN WITNESS WHEREOF, the parties hereto have entered into this AGREEMENT the
date and year first above written.
ATTEST: COSTA MESA SANITARY DISTRICT:
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Pre ' ent
APPROVED AS TO FORM:
Secretary
CONTRACTOR:
GCI Construction, Inc.
District Counsel
APPROVED AS TO CONTENT: Address:
1031 Cal - Recodo Suite D
San CI: ate, C 2673
Li
}� District General Manager
By: Terry D.Gillespie-President
HGSD 2016 CIP A-18 Agreement
l .
HGSD 2016 CIP A-19 Agreement
STATE OF CALIFORNIA) (INDIVIDUAL)/(CORPORATION)
ss.
COUNTY OF ORANGE )
On August 10,2017 , before me, the undersigned, a Notary Public in and for said state,
personally appeared Terry D.Gillespie who proved
to me on the basis of satisfactory evidence to be the person(,$)whose name(s) is/fir, subscribed
to the within instrument and acknowledged to me that he/Oh/they executed the same in
his/horalair authorized capacity(i , and that by his/bitty/VW signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
JANET GILLESPIE
_ •l`"�1rcornrnison#2o468
j• Notary P�iblic -California z
z ~% ' Orange County
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HGSD 2016 CIP A-20 Agreement