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HomeMy WebLinkAbout11-07-2012 Operations Committee Agenda Packet NOTICE OF MEETING OPERATIONS COMMITTEE ORANGE COUNTY SANITATION DISTRICT Engineering, Operations & Maintenance, and Facilities Support Services Wednesday, November 7, 2012 — 5:00 P.M. Administration Building 10844 Ellis Avenue Fountain Valley, CA 92708 The regular meeting of the Operations Committee of the Orange County Sanitation District will be held at the above location, date and time. OPERATIONS COMMITTEE BOARD MEETING DATE MEETING DATE 11/07/12 11/28/12 12/05/12 12119112`* JANUARY DARK 01/23/13 02/06/13 02/27/13 03/06/13 03/27/13 04/03/13 04/24/13 05/01/13 05/22/13 06/05/13 06/26/13 07/03/13 07/24/13 AUGUST DARK 08/28/13 09/04/13 09/25/13 10/02/13 10/23/13 **Meeting will be held on the third Wednesday of the month. Orange County Sanitation District Wednesday, November 7, 2012 Regular Meeting of the " 5:00 P.M. Operations Committee Administration Building Board Room 10844 Ellis Avenue Fountain Valley, CA 92708 (714) 593-7130 The following is an amended agenda from a previous agenda version that was posted and distributed on October 31, 2012. PLEDGE OF ALLEGIANCE: DECLARATION OF QUORUM: PUBLIC COMMENTS: If you wish to speak, please complete a Speaker's Form and give it to the Clerk of the Board. Speakers are requested to limit comments to three minutes. REPORTS: The Committee Chair and the General Manager may present verbal reports on miscellaneous matters of general interest to the Committee Members. These reports are for information only and require no action by the Committee. DEPARTMENT HEAD REPORT: Wastewater 101: Solids Processing CONSENT CALENDAR: 1. Approve Minutes of October 3, 2012, Operations Committee meeting. 2. Recommend to the Board of Directors to: A. Approve a Professional Design Services Agreement with Brown and Caldwell for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17, providing for engineering design services for an amount not to exceed $457,475; and, B. Approve a contingency of$45,747 (10%). 11/07/12 Operations Committee AMENDED Agenda Page 1 of 5 3. Recommend to the Board of Directors to: A. Adopt Resolution No. OCSD 12-XX, certifying the Notice of Exemption for the Orangthorpe Avenue Grade Separation Project, Finding that the Lead Agency CEQA Compliance Obligations have been Fulfilled, and Related Actions (Project No. 2-77); and, B. Approve a Reimbursement Agreement with the Orange County Transportation Authority for an amount not to exceed $3,000,000, in a form approved by General Counsel. 4. Recommend to the Board of Directors to: A. Award a construction contract to the lowest responsive and responsible bidder, Century Paving, Inc., for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026, for a total amount not to exceed $448,309; and, B. Approve a contingency of$89,661 (20%). 5. Recommend to the Board of Directors to: A. Approve a budget increase of $614,000, for a total project budget of $930,000; B. Approve a Professional Services Agreement with Arcadis U.S., Inc., for Phase 2 Facility-Wide Safety Assessment, Project No. SP-145-1, providing for services for an amount not to exceed $686,400; and, C. Approve a contingency of$68,640 (10%). 6. A. Authorize the General Manager to competitively bid and subsequently award a contract to the lowest responsive and responsible bidder, for the SA-11 Wintersburg Channel Siphon Vent Replacement Project No. FR11- 017, for an amount not to exceed $170,000; and B. Approve a contingency of$34,000 (20%). 11/07/12 Operations Committee AMENDED Agenda Page 2 of 5 NON-CONSENT: 7. Recommend to the Board of Directors to: Approve a Waste Disposal Agreement with the County of Orange (Orange County Waste and Recycling) for the County to receive and dispose of the Orange County Sanitation District's biosolids at the Prima Deshecha Landfill, subject to available capacity, for the period commencing on December 1, 2012 through June 30, 2020, with a renewal option of 10-years in a total annual amount not to exceed $3,605,288. 8. Recommend to the Board of Directors to: $9 %00 000 fGF the GGRtF Gt P :...I L.L. 9 2006 thre gh fle Geirrnbe 2% O119C f... Authorize Amendment No. 9 to Synagro West, Inc., (Synagro) Purchase Order No. 100760-OB, increasing the annual amount from $6,580,000 to an amount not to exceed (NTE) $8,600,000 for the period of January 1, 2012 through December 31, 2012 for the Orange County Sanitation District's biosolids management contract. Thereafter, the NTE will be $6,580,000. 9. Recommend to the Board of Directors to: A. Approve Plans and Specifications for Sludge Dewatering and Odor Control at Plant No. 1, Project No. 131-101, on file at the office of the Clerk of the Board; B. Approve Addendum Nos. 1 through 6 to the plans and specifications; C. Receive and file bid tabulation and recommendation; D. Receive and file Award Protest dated October 5, 2012 and Supplemental Award Protest dated October 12, 2012 from Balfour Beatty Infrastructure, Inc. concerning the award to W. M. Lyles Company; E. Receive and file response letter dated October 11, 2012, from W.M. Lyles Company to Award Protest from Balfour Beatty Infrastructure, Inc.; F. Receive and file Orange County Sanitation District Final Disposition letters dated October 15, 2012 and October 31, 2012 to Balfour Beatty Infrastructure, Inc. responding to the Award Protest; G. Deny Award Protest filed by Balfour Beatty Infrastructure, Inc.; (H-M continued on next page) 11/07/12 Operations Committee AMENDED Agenda Page 3 of 5 H. Receive and File Award Protest from Moyno, Inc. dated August 23, 2012, alleging that the sole source designation of Seepex for cake pumps was improper; I. Receive and file Orange County Sanitation District Final Disposition letter dated October 4, 2012 to Moyno, Inc., responding to Award Protest; J. Reject untimely Award Protest filed by Moyno, Inc.; K. Approve a budget increase of $24,708,300 for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101 for a total amount not to exceed $171,978,300; L. Award a construction contract to W.M. Lyles Company for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, for a total amount not to exceed $126,908,300; and, M. Approve a contingency of$3,800,000 (3%). CLOSED SESSION: During the course of conducting the business set forth on this agenda as a regular meeting of the Board, the Chair may convene the Board in closed session to consider matters of pending real estate negotiations, pending or potential litigation, or personnel matters, pursuant to Government Code Sections 54956.8, 54956.9, 54957 or 54957.6, as noted. Reports relating to (a) purchase and sale of real property; (b) matters of pending or potential litigation; (c) employment actions or negotiations with employee representatives;or which are exempt from public disclosure under the California Public Records Act, may be reviewed by the Board during a permitted closed session and are not available for public inspection. At such time as the Board takes final action on any of these subjects, the minutes will reflect all required disclosures of information. Convene in closed session. (1) CONFERENCE WITH LEGAL COUNSEL RE. ANTICIPATED LITIGATION (Government Code Section 54956.9(b)) Significant Exposure to Litigation Number of Potential Cases: 1 Reconvene in regular session. Consideration of action, if any, on matters considered in closed session. 11/07/12 Operations Committee AMENDED Agenda Page 4 of 5 OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF ANY: ADJOURNMENT: The next Operations Committee meeting is scheduled for Wednesday, December 5, 2012, at 5:00 p.m. Accommodations for the Disabled: Meeting Rooms are wheelchair accessible. If you require any special disability related accommodations, please contact the Orange County Sanitation Distinct Clerk of the Board's office at (714)593-7130 at least 72 hours prior to the scheduled meeting. Requests must specify the nature of the disability and the type of accommodation requested. Agenda Posting: In accordance with the requirements of California Government Code Section 54954.2,this agenda has been posted outside the main gate of the Sanitation District's Administration Building located at 10844 Ellis Avenue, Fountain Valley, California, not less than 72 hours prior to the meeting date and time above. All public records relating to each agenda item, including any public records distributed less than 72 hours prior to the meeting to all,or a majority of the Board of Directors,are available for public inspection in the office of the Clerk of the Board. NOTICE TO DIRECTORS: To place items on the agenda for the Committee Meeting, items must be submitted to the Clerk of the Board 14 days before the meeting. Made E.Ayala Clerk of the Board (714)593-7130 mavala(d)ocsd.com For any questions on the agenda,Committee members may contact staff at: General Manager Jim Ruth (714)593-7110 imth(cfmsd.cem Assistant General Manager Bob Ghirelli (714)593-7400 rohirelli(ti),ocsd.com Assistant General Manager Jim Herberg (714)593-7300 iherbern(a)omd.com Director of Facility Support Services Nick Arhontes (714)593-7210 narhontes(o�ocsd.com Director of Operations&Maintenance Ed Tortes 714 593-7080 etomes ocsd.com 11/07/12 Operations Committee AMENDED Agenda Page 5 of 5 Glossary of Terms and Abbreviations AQMD Air Quality Management District ASCE American Society of Civil Engineers BOO Biochemical Oxygen Demand CARB California Air Resources Board CASA California Association of Sanitation Agencies CCTV Closed Circuit Television CRWQCB California Regional Water Quality Control Board CWA Clean Water Act CWEA California Water Environment Association EIR Environmental Impact Report EMT Executive Management Team EPA U.S. Environmental Protection Agency FOG Fats, Oils, and Grease FSSD Facilities Support Services Department gpd Gallons per day GWR System Groundwater Replenishment System (also called GWRS) LOS Level of Service MGD Million gallons per day NACWA National Association of Clean Water Agencies NPDES National Pollutant Discharge Elimination System NWRI National Water Research Institute O&M Operations and Maintenance OCCOG Orange County Council of Governments OCHCA Orange County Health Care Agency OCSD Orange County Sanitation District OCWD Orange County Water District OOBS Ocean Outfall Booster Station OSHA Occupational Safety and Health Administration POTW Publicly Owned Treatment Works ppm Parts per million RFP Request For Proposal RWQCB Regional Water Quality Control Board SARFPA Santa Ana River Flood Protection Agency SARI Santa Ana River Inceptor SARWQCB Santa Ana Regional Water Quality Control Board Glossary of Terms and Abbreviations SAWPA Santa Ana Watershed Project Authority SCADA Supervisory Control and Data Acquisition system SCAP Southern California Alliance of Publicly Owned Treatment Works SCAQMD South Coast Air Quality Management District SOCWA South Orange County Wastewater Authority SSMP Sanitary Sewer Management Plan SSO Sanitary Sewer Overflow SWRCB State Water Resources Control Board TDS Total Dissolved Solids TMDL Total Maximum Daily Load TSS Total Suspended Solids WDR Waste Discharge Requirements WEF Water Environment Federation WERF Water Environment Research Foundation Activated-sludge process — A secondary biological wastewater treatment process where bacteria reproduce at a high rate with the introduction of excess air or oxygen, and consume dissolved nutrients in the wastewater. Biochemical Oxygen Demand (BOD)—The amount of oxygen used when organic matter undergoes decomposition by microorganisms. Testing for BOD is done to assess the amount of organic matter in water. Biosolids — Biosolids are nutrient rich organic and highly treated solid materials produced by the wastewater treatment process. This high-quality product can be recycled as a soil amendment on farm land or further processed as an earth-like product for commercial and home gardens to improve and maintain fertile soil and stimulate plant growth. Capital Improvement Program (CIP) — Projects for repair, rehabilitation, and replacement of assets. Also includes treatment improvements, additional capacity, and projects for the support facilities. Coliform bacteria—A group of bacteria found in the intestines of humans and other animals, but also occasionally found elsewhere used as indicators of sewage pollution. E. coli are the most common bacteria in wastewater. Collections system — In wastewater, it is the system of typically underground pipes that receive and convey sanitary wastewater or storm water. Certificate of Participation (COP) —A type of financing where an investor purchases a share of the lease revenues of a program rather than the bond being secured by those revenues. Contaminants of Potential Concern (CPC) — Pharmaceuticals, hormones, and other organic wastewater contaminants. Dilution to Threshold (DR) — the dilution at which the majority of the people detect the odor becomes the D(f for that air sample. Glossary of Terms and Abbreviations Greenhouse gases — In the order of relative abundance water vapor, carbon dioxide, methane, nitrous oxide, and ozone gases that are considered the cause of global warming ("greenhouse effect"). Groundwater Replenishment (GWR) System — A joint water reclamation project that proactively responds to Southern California's current and future water needs. This joint project between the Orange County Water District and the Orange County Sanitation District provides 70 million gallons a day of drinking quality water to replenish the local groundwater supply. Levels of Service (LOS)—Goals to support environmental and public expectations for performance. NDMA— N-Nitrosodimethylamine is an N-nitrosoamine suspected cancer-causing agent. It has been found in the Groundwater Replenishment System process and is eliminated using hydrogen peroxide with extra ultra-violet treatment. National Biosolids Partnership (NBP) — An alliance of the National Association of Clean Water Agencies (NACWA) and Water Environment Federation (WEF), with advisory support from the U.S. Environmental Protection Agency (EPA). NBP is committed to developing and advancing environmentally sound and sustainable biosolids management practices that go beyond regulatory compliance and promote public participation in order to enhance the credibility of local agency biosolids programs and improved communications that lead to public acceptance. Publicly-owned Treatment Works(POTW)— Municipal wastewater treatment plant. Santa Ana River Interceptor (SARI) Line — A regional brine line designed to convey 30 million gallons per day (MGD) of non-reclaimable wastewater from the upper Santa Ana River basin to the ocean for disposal, after treatment. Sanitary sewer — Separate sewer systems specifically for the carrying of domestic and industrial wastewater. Combined sewers carry both wastewater and urban run-off. South Coast Air Quality Management District (SCAQMD) — Regional regulatory agency that develops plans and regulations designed to achieve public health standards by reducing emissions from business and industry. Secondary treatment — Biological wastewater treatment, particularly the activated-sludge process, where bacteria and other microorganisms consume dissolved nutrients in wastewater. Sludge—Untreated solid material created by the treatment of wastewater. Total suspended solids (TSS)—The amount of solids floating and in suspension in wastewater. Trickling filter — A biological secondary treatment process in which bacteria and other microorganisms, growing as slime on the surface of rocks or plastic media, consume nutrients in wastewater as it trickles over them. Urban runoff — Water from city streets and domestic properties that carry pollutants into the storm drains, rivers, lakes, and oceans. Wastewater—Any water that enters the sanitary sewer. Watershed —A land area from which water drains to a particular water body. OCSD's service area is in the Santa Ana River Watershed. Return to Agenda OPERATIONS COMMITTEE Meeting Dale To ad.ofDir. 11/07/12 11/28112 AGENDA REPORT Item Number Item Number 2 Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Assistant General Manager CIP Project Manager: Martin Dix SUBJECT: SANTA ANA TRUNK SEWER REHABILITATION, PROJECT NO. 1-17 GENERAL MANAGER'S RECOMMENDATION A. Approve a Professional Design Services Agreement with Brown and Caldwell for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17, providing for engineering design services for an amount not to exceed $457,475; and, B. Approve a contingency of$45,747 (10%). SUMMARY In July 2010, the Orange County Sanitation District (Sanitation District) awarded a design agreement to Brown and Caldwell to prepare a Condition Assessment Report (Report) and Preliminary Design recommendation for the Santa Ana Trunk Sewer (SATS). To verify the structural and physical conditions of the SATS, the Sanitation District performed additional coring and laboratory pipeline analysis in February 2012. Based on the results of the Report and additional coring investigation, the Sanitation District decided to rehabilitate only the manholes, junction structures, and pipeline reaches that are in the worst condition and need near-term rehabilitation. The project budget was reduced from $21.1 Million to $7.3 Million. For the remaining of manholes and pipeline, the Sanitation District will perform ongoing manhole and pipeline assessment updates in approximate 5 year intervals, until conditions warrant that design and construction should commence within a 2 to 4 year timeframe. Brown and Caldwell satisfactorily furnished the engineering services for the assessment and preliminary design and their continuity with the design of these elements for construction will be efficient and cost-effective. The proposed Professional Design Services Agreement includes the preparation of plans and specifications for the rehabilitation of the worst reaches of the SATS to maximize the pipeline's useful life with minimal cost. PRIOR COMMITTEE/BOARD ACTIONS June 2012 - Authorized staff to negotiate a Professional Design Services Agreement with Brown and Caldwell to provide engineering design services for the Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17. Page 1 of 3 July 2010 - Approved a Professional Design Services Agreement with Brown and Caldwell for Santa Ana Trunk Sewer Rehabilitation, Project No. 1-17, providing for engineering design services for an amount not to exceed $801,850; and approved a contingency of$80,185 (10%). ADDITIONAL INFORMATION The SATS was constructed in 1952 and is located in the cities of Costa Mesa, Santa Ana, and Fountain Valley. The SATS is a major wastewater pipeline that currently collects and conveys approximately 15 million gallons per day of raw wastewater to the Sanitation District's Reclamation Plant No. 1, located in Fountain Valley, California. The SATS Rehabilitation Project focuses on a portion of the SATS that is comprised of approximately 3.3 miles of concrete pipe, from 42 to 60 inches in diameter, 39 manholes, and three siphons located beneath storm drain channels and the Santa Ana River. The limits of the project are from Reclamation Plant No. 1 (western limit) to the intersection of Alton Avenue and Bristol Street (eastern limit) in Santa Ana. The Sanitation District retained Brown and Caldwell as condition assessment consultant to conduct surveying and mapping, flow monitoring, hydraulic model updates, odor control assessment, manhole inspections, and remote closed circuit television (CCTV) pipeline inspection. This work resulted in pipeline and manhole condition ratings, rehabilitation alternatives evaluation, and single contract delivery recommendations. Recognizing that the manholes in the SATS project limits are generally more degraded than the piping itself, discussions were held to explore the possibility of pursuing a near- term manhole rehabilitation project and continue monitoring the condition of SATS over time. More specifically, 21 of the 39 project manholes were deemed to require structural remediation within 5 to 10 years, whereas the remainder of the manholes and piping were deemed to likely require structural remediation in 10 to 20 years. The District received a requested fee proposal based on a written scope of work. Staff conducted negotiations with Brown and Caldwell to clarify the requirements and establish a final negotiated fee. After negotiations with the Consultant, the fee was reduced $90,399. Staff has determined this final fee to be fair and reasonable for the scope of work and recommends awarding the Professional Design Services Agreement to Brown and Caldwell for an amount not to exceed $457,475. CEQA The project is statutorily exempt from the California Environmental Quality Act pursuant to Public Resource Code Section 21080.21, and categorically exempt pursuant to CEQA Guidelines 15282(k) because it consists of actions less than one-mile in length within a public street or highway and other public rights-of-way for the installation of a new pipeline and/or the maintenance, repair, restoration, reconditioning, relocation, replacement, removal, and/or demolition of an existing pipeline. Page 2 of 3 The project is also categorically exempt pursuant to CEQA Guidelines Sections 15301 because it consists of the operation, repair, maintenance, permitting and/or minor alteration of existing public structures, facilities, and/or mechanical equipment, involving no expansion of use beyond that currently existing. The recommended action is also categorically exempt pursuant to CEQA Guidelines Sections 15302 because it consists of replacement or reconstruction of existing (below-ground) structures and facilities where the new structure will be located on the same site (within the same right-of-way) as the structure replaced, and will have substantially the same purpose and capacity as the structure replaced. The project is also within the scope of the Program Environmental Impact Report for the 1999 Strategic Plan, dated October 1999. Pursuant to CEQA Guidelines section 15168(c)(4), Sanitation District will use a written checklist to document its evaluation of the recommended action, and have determined that the recommended action is within the scope of the program EIR. BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This complies with the authority levels in the Sanitation District's Delegation of Authority. The project budget is sufficient for the recommended action. (FY 2012-13, Section 8, Page 15). Date of ADDroval Contract Amount Continaencv 11/28/12 $457,475 $45,747 ATTACHMENT The following attachment(s)maybe viewed on-line at the OCSD website (www.ocsd.com) with the complete agenda package and attachments: ( Professional Design Services Agreement (16 pages) JH:MD:dm:gc Page 3 of 3 PROFESSIONAL DESIGN SERVICES AGREEMENT THIS AGREEMENT, is made and entered into to be effective the 28' day of November, 2012 by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "SANITATION DISTRICT", and BROWN AND CALDWELL, for purposes of this Agreement hereinafter referred to as "CONSULTANT". WITNESSETH: WHEREAS, the SANITATION DISTRICT desires to engage a CONSULTANT for Santa Ana Trunk Sewer Rehabilitation, Project No. 1.17; and to provide Design services for the rehabilitation of select manholes and segments of the gravity sewer as defined in the Scope of Work; and, WHEREAS, CONSULTANT is qualified to provide the necessary services in connection with these requirements and has agreed to provide the necessary professional services; and, WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of professional services and has proceeded in accordance with said procedures to select a CONSULTANT to perform this work; and, WHEREAS, at its regular meeting on November 28, 2012 the Board of Directors, by Minute Order, accepted the recommendation of the Operations Committee to approve this Agreement between the SANITATION DISTRICT and CONSULTANT. NOW, THEREFORE, in consideration of the promises and mutual benefits, which will result to the parties in carrying out the terms of this Agreement, it is mutually agreed as follows: 1. SCOPE OF WORK. CONSULTANT agrees to furnish necessary professional and technical services to accomplish those project elements outlined in the Scope of Work attached hereto as Attachment"A", and by this reference made a part of this Agreement. A. The CONSULTANT shall be responsible for the professional quality, technical accuracy, completeness, and coordination of all design, drawings, specifications, and other services furnished by the CONSULTANT under this Agreement, including the work performed by its Subconsultants. Where approval by the SANITATION DISTRICT is indicated, it is understood to be conceptual approval only and does not relieve the CONSULTANT of responsibility for complying with all laws, codes, industry standards and liability for damages caused by errors, omissions, noncompliance with industry standards, and/or negligence on the part of the CONSULTANT or its Subconsultants. B. CONSULTANT is responsible for the quality of work prepared under this Agreement and shall perform its work in accordance with engineering standards in effect for clarity, uniformity, and completeness. CONSULTANT shall respond to all comments, suggestions, and recommendations on the SANITATION DISTRICT's review comment sheets (i.e. DS1, DS2 and DS3).All comments shall be incorporated into the design prior to the next submittal deadline or addressed, in writing, as to why the comment has not been incorporated. CONSULTANT shall ensure that each submittal is 100% accurate for the level of PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 1 of 16 work submitted (i.e. correct references, terms, capitalization or equal status, spelling, punctuation, etc.) C. In the event that work is not performed to the satisfaction of the SANITATION DISTRICT and does not conform to the requirements of this agreement or any applicable industry standards, the CONSULTANT shall, without additional compensation, promptly correct or revise any errors or deficiencies in its designs, drawings, specifications, or other services within the timeframe specified by the Project Engineer/Project Manager. The SANITATION DISTRICT may charge to CONSULTANT all costs, expenses and damages associated with any such corrections or revisions. D. All CAD drawings, figures, and other work shall be produced by CONSULTANTS and Subconsultants using the SANITATION DISTRICT CAD Manual. Conversion of CAD work from any other non-standard CAD format to the SANITATION DISTRICT format shall not be acceptable in lieu of this requirement. Electronic files shall conform to the SANITATION DISTRICT specifications. Any changes to these specifications by the CONSULTANT are subject to review and approval of the SANITATION DISTRICT. Electronic files shall be subject to an acceptance period of 30 calendar days during which the SANITATION DISTRICT shall perform appropriate reviews and including CAD Manual compliance. CONSULTANT shall correct any discrepancies or errors detected and reported within the acceptance period at no additional cost to the SANITATION DISTRICT. E. The CONSULTANT shall ensure that all plans and specifications prepared, or recommended under this Agreement allow for competitive bidding. The CONSULTANT shall design such plans or specifications so that procurement of services, labor or materials are not available from only one source, and shall not design plans and specifications around a single or specific product, piece of major equipment or machinery, a specific patented design or a proprietary process, unless required by principles of sound engineering practice and supported by a written justification that has been approved in writing by the SANITATION DISTRICT. The CONSULTANT shall submit this written justification to the SANITATION DISTRICT prior to beginning work on such plans and specifications. Whenever the CONSULTANT recommends a specific product or equipment for competitive procurement, such recommendation shall include at least two brand names of products that are capable of meeting the functional requirements applicable to the project. F. All professional services performed by the CONSULTANT, including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the CONSULTANT, pursuant to this Agreement, are for the sole use of the SANITATION DISTRICT, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the SANITATION DISTRICT. This provision does not apply to information that (a)was publicly known, or otherwise known to the CONSULTANT, at the time that it was disclosed to the CONSULTANT by the PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 2 of 16 SANITATION DISTRICT, (b)subsequently becomes publicly known to the CONSULTANT other than through disclosure by the SANITATION DISTRICT. Except for Subconsultants covered by Section 2 (a) neither the documents nor their contents shall be released to any third party without the prior written consent of the SANITATION DISTRICT. 2. COMPENSATION. Total compensation shall be paid to CONSULTANT for services in accordance with the following provisions: A. Total Compensation. Total compensation shall be in an amount not to exceed Four Hundred Fifty Seven Thousand Four Hundred Seventy Five Dollars ($457,475). Total compensation to CONSULTANT including burdened labor(salaries plus benefits), overhead, profit, direct costs, and subconsultant(s)fees and costs shall not exceed the sum set forth herein, broken down as follows: DESIGN SERVICES INCLUDING: CONSULTANT: BROWN AND CALDWELL Raw Labor $ 114,212 Fringe Rate 40% (%x Raw Labor) 45.68 Burdened labor (Raw Labor+Fringe Rate) $ 159,897 Overhead 114.50% (%x Burden Labor) $ 183,082 Subtotal (Burden Labor+Overhead) $ 342,979 Profit 9.79% (%x Subtotal) $ 33,578 Total Direct Costs, not to exceed 1,000 TOTAL- CONSULTANT Consulting Services, not to exceed $ 377,557 Subconsultants under$100,000: Subconsultant A Scheidegger $ 4,980 Subconsultant B SAF-R-DIG Utility Surveys, Inc. $ 15,520 Subconsultant C Traffic Control Engineering $ 16,000 Suboonsultant D KOM Meridian $ 14,300 Suboonsultant E Ninyo& Moore $29 118 TOTAL-Subconsultants under$100,000 $79,918 GRAND TOTAL for Design Services, not to exceed $457,475 PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 3 of 16 The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of Subconsultant fees and charges, in an amount not to exceed Seventy Nine Thousand Nine Hundred Eighteen Dollars ($79,918). Profit for CONSULTANT and Subconsultants shall be a percentage of consulting services fees (Burdened Labor and Overhead). When the consulting or subconsulting services amount is $250,000 or less, the maximum Profit shall be 10%. Between $250,000 and $2,500,000, the maximum Profit shall be limited by a straight declining percentage between 10% and 5%. For consulting or subconsulting services fees with a value greater than $2,500,000, the maximum Profit shall be 5%. Addenda shall be governed by the same maximum Profit percentage after adding consulting services fees. B. Labor. As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the burdened salaries (salaries plus benefits) actually paid by CONSULTANT charged on an hourly-rate basis to this project and paid to the personnel of CONSULTANT. Upon request of the SANITATION DISTRICT, CONSULTANT shall provide the SANITATION DISTRICT with certified payroll records of all employees' work that is charged to this project. C. Monthly Invoice. CONSULTANT shall include in its monthly invoice, a detailed breakdown of costs associated with the performance of any corrections or revisions of the work for that invoicing period. CONSULTANT shall allocate costs in the same manner as it would for payment requests as described in Section 5, Payment, of this Agreement. CONSULTANT shall warrant and certify the accuracy of these costs and understand that submitted costs are subject to Section 12 Audit Provisions. D. Overhead. As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall compensate CONSULTANT for overhead at a rate equal to 114.50%of burdened labor paid by CONSULTANT pursuant to Compensation Section hereof. E. Profit. As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall pay a profit of Thirty Three Thousand Five Hundred Seventy Eight Dollars ($33,578)for all services rendered by CONSULTANT for this project. F. Subconsultants. The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of subconsultant fees and charges in an amount not to exceed Seventy Nine Thousand Nine Hundred Eighteen Dollars ($79,918). G. Direct Costs. The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of permits and associated fees, travel and licenses for an amount not to exceed One Thousand Dollars ($1,000). The SANITATION DISTRICT shall also pay to CONSULTANT actual costs for equipment rentals, leases or purchases with prior approval of the SANITATION DISTRICT. Upon request, CONSULTANT shall provide to the SANITATION DISTRICT receipts and other documentary records to support CONSULTANT's request for reimbursement of these amounts. All incidental expenses shall be included in overhead pursuant to Compensation Section above. (See Attachment 'D"). PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 4 of 16 3. REALLOCATION OF TOTAL COMPENSATION. The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve a reallocation of the incremental amounts constituting the total compensation, provided that the total compensation is not increased. 4. When the SANITATION DISTRICT determines that all Work authorized under the Contract is fully complete and that the SANITATION DISTRICT requires no further work from CONSULTANT, or the Contract is otherwise terminated or expires in accordance with the terms of the Contract, the SANITATION DISTRICT shall give the Consultant written notice that the Contract will be closed out. CONSULTANT shall submit all outstanding billings, Work submittals, deliverables, reports or similarly related documents as required under the Contract within thirty(30) days of receipt of notice of Contract closeout. Upon receipt of CONSULTANT'S submittals,the SANITATION DISTRICT shall commence a closeout audit of the Contract and will either: i. Give the CONSULTANT a final Contract Acceptance: or ii. Advise the CONSULTANT in writing of any outstanding item or items which must be furnished, completed, or corrected at the CONSULTANT'S cost. CONSULTANT shall be required to provide adequate resources to fully support any administrative Project Closeout efforts identified in Agreement. Such support must be provided within the timeframe requested by the SANITATION DISTRICT. Notwithstanding the final Contract Acceptance the CONSULTANT will not be relieved of its obligations hereunder, nor will the CONSULTANT be relieved of its obligations to complete any portions of the Work, the non-completion of which were not disclosed to the SANITATION DISTRICT (regardless of whether such nondisclosures were fraudulent, negligent, or otherwise); and the CONSULTANT shall remain obligated under all those provisions of the Contract which expressly or by their nature extend beyond and survive final Contract Acceptance. Any failure by the SANITATION DISTRICT to reject the work or to reject the CONSULTANT'S request for final Contract Acceptance as set forth above shall not be deemed to be Acceptance of the Work by the SANITATION DISTRICT for any purpose nor imply Acceptance of, or agreement with, the Consultant's request for final Contract Acceptance. 5. PAYMENT A. CONSULTANT may submit monthly or periodic statements requesting payment for those items included in Section 2 hereof in the format as required by the SANITATION DISTRICT. Such requests shall be based upon the amount and value of the work and services performed by CONSULTANT under this Agreement and shall be prepared by CONSULTANT and accompanied by such supporting data, including a detailed breakdown of all costs incurred and project element work performed during the period covered by the statement, as may be required by the SANITATION DISTRICT. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 5 of 16 Upon approval of such payment request by the SANITATION DISTRICT, payment shall be made to CONSULTANT as soon as practicable of one hundred percent(100%)of the invoiced amount on a per-project-element basis. If the SANITATION DISTRICT determines that the work under this Agreement or any specified project element hereunder, is incomplete and that the amount of payment is in excess of: I. The amount considered by the SANITATION DISTRICT's Director of Engineering to be adequate for the protection of the SANITATION DISTRICT; or ii. The percentage of the work accomplished for each project element. He may, at his discretion, retain an amount equal to that which insures that the total amount paid to that date does not exceed the percentage of the completed work for each project element or the project in its entirety. B. CONSULTANT may submit periodic payment requests for each 30-day period of this Agreement for the profit as set forth in Compensation Section above. Said profit payment request shall be proportionate to the work actually accomplished to date on a per-project-element basis. In the event the SANITATION DISTRICT's Director of Engineering determines that no satisfactory progress has been made since the prior payment, or in the event of a delay in the work progress for any reason, the SANITATION DISTRICT shall have the right to withhold any scheduled proportionate profit payment. C. Upon satisfactory completion by CONSULTANT of the work called for under the terms of this Agreement, and upon acceptance of such work by the SANITATION DISTRICT, CONSULTANT will be paid the unpaid balance of any money due for such work, including any retained percentages relating to this portion of the work. D. Upon satisfactory completion of the work performed hereunder and prior to final payment under this Agreement for such work, or prior settlement upon termination of this Agreement, and as a condition precedent thereto, CONSULTANT shall execute and deliver to the SANITATION DISTRICT a release of all claims against the SANITATION DISTRICT arising under or by virtue of this Agreement other than such claims, if any, as may be specifically exempted by CONSULTANT from the operation of the release in stated amounts to be set forth therein. E. Pursuant to the California False Claims Act(Government Code sections 12650- 12655), any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT for compensation under the terms of this Agreement may be held liable for treble damages and up to a $10,000 civil penalty for each false claim submitted. This section shall also be binding on all Subconsultants. A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim when the CONSULTANT or Subconsultant: a) knowingly presents or causes to be presented to an officer or employee of the SANITATION DISTRICT a false claim or request for payment or approval; b) knowingly makes, uses, or PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 6 of 16 causes to be made or used a false record or statement to get a false claim paid or approved by the SANITATION DISTRICT; c)conspires to defraud the SANITATION DISTRICT by getting a false claim allowed or paid by the SANITATION DISTRICT; d) knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to the SANITATION DISTRICT; or e) is a beneficiary of an inadvertent submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false claim to the SANITATION DISTRICT within a reasonable time after discovery of the false claim. 6. PREVAILING WAGES To the extent CONSULTANT intends to employ employees who will perform work during the design and preconstruction phases of a construction contract, as more specifically defined under Labor Code Section 1720, CONSULTANT shall be subject to prevailing wage requirements with respect to such employees. 7. DOCUMENT OWNERSHIP—SUBSEQUENT CHANGES TO PLANS AND SPECIFICATIONS—CONSULTANT PERFORMANCE A. Ownership of Documents for the Professional Services performed, all documents, including but not limited to, original plans, studies, sketches, drawings, computer printouts and disk files, and specifications prepared in connection with or related to the Scope of work or Professional Services, shall be the property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of these documents includes use of, reproduction or reuse of and all incidental rights, whether or not the work for which they were prepared has been performed. The SANITATION DISTRICT ownership entitlement arises upon payment or any partial payment for work performed and includes ownership of any and all work product completed prior to that payment. This Section shall apply whether the CONSULTANT's Professional Services are terminated: a) by the completion of the Agreement, or b) in accordance with other provisions of this Agreement. Notwithstanding any other provision of this paragraph or Agreement, the CONSULTANT shall have the right to make copies of all such plans, studies, sketches, drawings, computer printouts and disk files, and specifications. B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or uses of the plans or specifications, where the subsequent changes or uses are not authorized or approved by CONSULTANT, provided that the service rendered by CONSULTANT was not a proximate cause of the damage. C. The CONSULTANT's performance shall be evaluated by the SANITATION DISTRICT. A copy of the evaluation shall be sent to the CONSULTANT for comment. The evaluation, together with the comments, shall be retained by the Department and may be considered in future CONSULTANT selection processes. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 7 of 16 8. INSURANCE A. General I. Insurance shall be issued and underwritten by insurance companies acceptable to the SANITATION DISTRICT. ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at least Class Vill, or better, in accordance with the most current A.M. Best's Guide Rating. However, the SANITATION DISTRICT will accept State Compensation Insurance Fund, for the required policy of Workers Compensation Insurance subject to the SANITATION DISTRICT's option to require a change in insurer in the event the State Fund financial rating is decreased below"B". Further, the SANITATION DISTRICT will require Contractor to substitute any insurer whose rating drops below the levels herein specified. Said substitution shall occur within 20 days of written notice to Contractor, by the SANITATION DISTRICT or its agent. iii. Coverage shall be in effect prior to the commencement of any work under this Agreement. B. General Liabilitv The CONSULTANT shall maintain during the life of this contract, including the period of warranty, Commercial General Liability Insurance written on an occurrence basis providing the following minimum limits of liability coverage: Two Million Dollars ($2,000,000) per occurrence with Two Million Dollars ($2,000,000) aggregate. Said insurance shall include coverage for the following hazards: Premises-Operations, blanket contractual liability(for this Agreement), products liability/completed operations (including any product manufactured or assembled), broad form property damage, blanket contractual liability, independent contractors liability, personal and advertising injury, mobile equipment, owners and contractors protective liability, and cross liability and severability of interest clauses. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse and Underground) must be included in the General Liability policy and coverage must be reflected on the submitted Certificate of Insurance. C. Umbrella Excess Liabilitv The minimum limits of general liability and automotive liability insurance required, as set forth herein, shall be provided for through either a single policy of primary insurance or a combination of policies of primary and umbrella excess coverage. Umbrella excess liability coverage shall be issued with limits of liability which, when combined with the primary insurance,will equal the minimum limits for general liability and automotive liability. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 8 of 16 D. AutomotiveNehicle liability Insurance The CONSULTANT shall maintain a policy of Automotive Liability insurance on a comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and other vehicles providing the following minimum limits of liability coverage: Combined single limit of Two Million Dollars ($2,000,000)or alternatively Two Million Dollars ($2,000,000) per person for bodily injury and One Million Dollars ($1,000,000) per accident for property damage. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement. E. Worker's Compensation Insurance The CONSULTANT shall provide such Workers' Compensation Insurance as required by the Labor Code of the State of California in the amount of the statutory limit, including Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance certificate will not be accepted in lieu of the actual endorsements unless the insurance carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. F. Errors and Omissions/Professional Liability CONSULTANT shall maintain in full force and effect, throughout the term of this Agreement, standard industry form professional negligence errors and omissions insurance coverage in an amount of not less than Five Million Dollars ($5,000,000)with limits in accordance with the provisions of this Paragraph. If the policy of insurance is written on a "claims made" basis, said policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of five (5)years from the date of the completion of the services hereunder. In the event of termination of said policy during this period, CONSULTANT shall obtain continuing insurance coverage for the prior acts or omissions of CONSULTANT during the course of performing services under the term of this Agreement. Said coverage shall be evidenced by either a new policy evidencing no gap in coverage or by separate extended "tail" coverage with the present or new carrier. In the event the present policy of insurance is written on an "occurrence" basis, said policy shall be continued in full force and effect during the term of this Agreement or until completion of the services provided for in this Agreement, whichever is later. In the event of termination of said policy during this period, new coverage shall be obtained for the required period to insure for the prior acts of CONSULTANT during the course of performing services under the term of this Agreement. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 9 of 16 CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention amounts and the expiration date of said policy, and shall provide renewal certificates not less than ten (10)days prior to the expiration of each policy term. G. Proof of Coverage The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the SANITATION DISTRICT before work commences. The SANITATION DISTRICT reserves the right to require complete, certified copies of all required insurance policies, including endorsements, effecting the coverage required, at any time. The following are approved forms that must be submitted as proof of coverage: • Certificate of Insurance ACORD Form 25-S(7/97)or equivalent. • Additional Insurance (ISO Form)CG2010 11 85 or (General Liability) The combination of(ISO Forms) CG 2010 10 01 and CG 2037 10 01 All other Additional Insured endorsements must be submitted for approval by the SANITATION DISTRICT, and the SANITATION DISTRICT may reject alternatives that provide different or less coverage to the SANITATION DISTRICT. • Additional Insured Submit endorsement provided by carrier for the (Auto Liability) SANITATION DISTRICT approval. • Waiver of Subrogation State Compensation Insurance Fund Endorsement No. 2570 or equivalent. • Cancellation Notice State Compensation Insurance Fund Endorsement No. 2065 or equivalent. H. Cancellation Notice Each insurance policy required herein shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty(30)days' prior written notice. The Cancellation Section of ACORD Form 25-S (7/97)shall state the required thirty(30) days'written notification. The policy shall not terminate, nor shall it be cancelled, nor the coverage reduced until thirty(30) days after written notice is given to the SANITATION DISTRICT except for nonpayment of premium, which shall require not less than ten (10) days written notice to the SANITATION DISTRICT. Should there be changes in coverage or an increase in deductible or SIR amounts, the CONSULTANT and its insurance broker/agent PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 10 of 16 shall send to the SANITATION DISTRICT a certified letter which includes a description of the changes in coverage and/or any increase in deductible or SIR amounts. The certified letter must be sent to the attention of Contracts Administration, Div. 230, and shall be received by the SANITATION DISTRICT not less than thirty(30)days prior to the effective date of the change(s) if the change would reduce coverage or increase deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage provided to the SANITATION DISTRICT. I. Primary Insurance All liability policies shall contain a Primary and Non Contributory Clause. Any other insurance maintained by the SANITATION DISTRICT shall be excess and not contributing with the insurance provided by CONSULTANT. J. Separation of Insured All liability policies shall contain a "Separation of Insureds'clause. K. Non-Limiting (if applicable) Nothing in this document shall be construed as limiting in any way, nor shall it limit the indemnification provision contained in this Agreement, or the extent to which CONSULTANT may be held responsible for payment of damages to persons or property. L. Deductibles and Self-Insured Retentions Any deductible and/or self insured retention must be declared to the SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or self insured retentions require approval by the SANITATION DISTRICT. At the option of the SANITATION DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of losses and related investigations, claim administration and defense expenses. M. Defense Costs Liability policies shall have a provision that defense costs for all insureds and additional insureds are paid in addition to and do not deplete any policy limits. N. Subcensultants The CONSULTANT shall be responsible to establish insurance requirements for any subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types reasonably sufficient to deal with the risk of loss involving the subconsultant's operations and work. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 11 of 16 9. SCOPE CHANGES. In the event of a change in the scope of the proposed project, requested by SANITATION DISTRICT, the parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new Agreement, including but not limited to any additional CONSULTANT's fees. 10. PROJECT TEAM AND SUBCONSULTANTS. CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this Agreement, the names and full description of all subconsultants and CONSULTANT's project team members anticipated to be used on this project by CONSULTANT. CONSULTANT shall include a description of the scope of work to be done by each subconsultant and each CONSULTANT's project team member. CONSULTANT shall include the respective compensation amounts for CONSULTANT and each subconsultant on a per-project-element basis, broken down as indicated in Section 2 (Compensation). There shall be no substitution of the listed subconsultants and CONSULTANT's project team members without prior written approval by the SANITATION DISTRICT. 11. ENGINEERING REGISTRATION. The CONSULTANT's personnel are comprised of registered engineers and a staff of specialists and draftsmen in each department. The firm itself is not a registered engineer but represents and agrees that wherever in the performance of this Agreement requires the services of a registered engineer. Such services hereunder will be performed under the direct supervision of registered engineers. 12. AUDIT PROVISIONS i. SANITATION DISTRICT retains the reasonable right to access, review, examine, and audit, any and all books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify that the CONSULTANT is in compliance with all requirements under this Agreement. The CONSULTANT shall include the SANITATION DISTRICT's right as described above, in any and all of their subcontracts, and shall ensure that these rights are binding upon all Subconsultants. ii. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify all direct and indirect costs, of whatever nature, which are claimed to have been incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance with all requirements under this Agreement during the term of this Agreement and for a period of three (3)years after its termination. iii. CONSULTANT shall maintain complete and accurate records in accordance with generally accepted industry standard practices and the SANITATION DISTRICT's policy. The CONSULTANT shall make available to the SANITATION DISTRICT for review and audit, all Project related accounting records and documents, and any other financial data within 15 days after receipt of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of originals of all requested records to the SANITATION DISTRICT. If an audit is performed, CONSULTANT shall PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 12 of 16 ensure that a qualified employee of the CONSULTANT will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related accounting records and documents, and any other financial data. 13. LEGAL RELATIONSHIP BETWEEN PARTIES. The legal relationship between the parties hereto is that of an independent contractor and nothing herein shall be deemed to make CONSULTANT an employee of the SANITATION DISTRICT. 14. TERMINATION. The SANITATION DISTRICT mayterminate this Agreement at any time, without cause, upon giving thirty(30)days written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be entitled to compensation for work performed on a prorated basis through and including the effective date of termination. CONSULTANT shall be permitted to terminate this Agreement upon thirty(30)days written notice only if CONSULTANT is not compensated for billed amounts in accordance with the provisions of this Agreement, when the same are due. Notice of termination shall be mailed to the SANITATION DISTRICT at: ORANGE COUNTY SANITATION DISTRICT 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Attention: Gary V. Prater, Principal Contracts Administrator Notice of termination shall be mailed to CONSULTANT at: BROWN AND CALDW ELL 18200 Von Karman Avenue, Suite 400 Irvine, CA 92612 Attention: Dan Bunce 15. DOCUMENTS AND STUDY MATERIALS. The documents and study materials for this project shall become the property of the SANITATION DISTRICT upon the termination or completion of the work. CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all memoranda, correspondence, computation and study materials in its files pertaining to the work described in this Agreement, which is requested in writing by the SANITATION DISTRICT. 16. COMPLIANCE. CONSULTANT certifies by the execution of this Agreement that it pays employees not less than the minimum wage as defined by law, and that it does not discriminate in its employment with regard to race, color, religion, sex or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non-discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. 17. CONTRACT EXECUTION AUTHORIZATION. Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual executing this document by and on behalf of each parry is a person duly authorized to execute contracts for that party. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 13 of 16 18. DISPUTE RESOLUTION. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity conducting alternate dispute resolution services. 19. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS. If any action at law or inequity or if any proceeding in the form of an Alternative Dispute Resolution (ADR) 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. 20. PROGRESS REPORTS. Monthly progress reports shall be submitted for review by the tenth day of the following month and must include as a minimum: 1) current activities, 2) future activities, 3) potential items that are not included in the Scope of Work,4) concerns and possible delays, 5) percentage of completion, and 6) budget status. 21. WARRANTY. CONSULTANT shall perform its services in accordance with generally accepted industry and professional standards. If, within the 12-month period following completion of its services, the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION DISTRICT, take all such actions as are necessary to correct or complete the noted deficiency(ies). 22. INDEMNIFICATION. To the fullest extent permitted by law, CONSULTANT shall indemnify, defend (at CONSULTANT'S sole cost and expense and with legal counsel approved by the SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT'S officers, directors, employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and against any and all claims, damages, liabilities, causes of action, suits, arbitration awards, losses,judgments,fines, penalties, costs and expenses (including, without limitation, attomeys'fees, disbursements and court costs, and all other professional, expert or CONSULTANT'S fees and costs and the SANITATION DISTRICT'S general and administrative expenses; individually, a "Claim"; collectively, "Claims")which may arise from or are in any manner related, directly or indirectly, to any work performed, or any operations, activities, or services provided by CONSULTANT in carrying out its obligations under this Agreement to the extent of the negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers, agents, employees, CONSULTANT'S suppliers, CONSULTANT, subconsultants, subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely from: (A)the active negligence or willful misconduct of the Indemnified Parties; or (B) a natural disaster or other act of God, such as an earthquake; or (C)the independent action of a third party who is neither one of the Indemnified Parties nor the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT'S supplier, CONSULTANT, subconsultant, subcontractor, nor anyone employed directly or indirectly by any of them. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 14 of 16 Exceptions (A)through (B)above shall not apply, and CONSULTANT shall, to the fullest extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more than one cause if any such cause taken alone would otherwise result in the obligation to indemnify hereunder. CONSULTANT'S liability for indemnification hereunder is in addition to any liability CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of any of the provisions of this Agreement. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit CONSULTANT'S indemnification obligation or other liability hereunder. The terms of this Agreement are contractual and the result of negotiation between the parties hereto. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654)that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. 23. DUTY TO DEFEND. The duty to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend shall exist regardless of any ultimate liability of CONSULTANT and shall be consistent with Civil Code section 2782.8. Such defense obligation shall arise immediately upon presentation of a Claim by any person if, without regard to the merit of the Claim, such Claim could potentially result in an obligation to indemnify one or more Indemnified Parties, and upon written notice of such Claim being provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the payment or advance of defense costs by any Indemnified Party shall not be a condition precedent to enforcing such Indemnified Parry's rights to indemnification hereunder. In the event a final judgment, arbitration, award, order, settlement, or other final resolution expressly determines that the claim did not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent, then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending the Indemnified Parties against such claims. CONSULTANT'S indemnification obligation hereunder shall survive the expiration or earlier termination of this Agreement until such time as action against the Indemnified Parties for such matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. 24. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. PDSA PROJECT NO. 1.17 Revised 11117110 SANTA ANA TRUNK SEWER REHABILITATION Page 15 of 16 IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year first above written. ORANGE COUNTY§IANITATION DISTRICT o 2- Mar Dubois(Approved as to Form) Date Co tracts, Purchasing and Materials nagement Division as By Chair, Board of Directors Date By Clerk of the Board Date BROWN AND CALDWELL By Date By Date ORANGE COUNTY SANITATION DISTRICT By Marc Dubois Date Contracts, Purchasing and Materials Management Division Manager Attachments: Attachment"A"—Scope of Work Attachment"D"—Allowable Direct Costs Attachment"G"—Cost Matrix GVP:yp EDMS:003965017 PDSA PROJECT NO. 1.17 Revised 11/17/10 SANTA ANA TRUNK SEWER REHABILITATION Page 16 of 16 Return to Agenda OPERATIONS COMMITTEE Needng Dare TOBd.of Dll. 11/07/12 11/23/t2 AGENDA REPORT Item Number Item Number 3 Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Director of Engineering Project Manager: Wendy Smith SUBJECT: ORANGETHORPE AVENUE GRADE SEPARATION PROJECT NO. 2-77, REIMBURSEMENT AGREEMENT GENERAL MANAGER'S RECOMMENDATION A. Adopt Resolution No. OCSD XX-XX, certifying the Notice of Exemption for the Orangethorpe Avenue Grade Separation Project, Finding that the Lead Agency CEQA Compliance Obligations have been Fulfilled, and Related Actions (Project No. 2-77); and, B. Approve a Reimbursement Agreement with the Orange County Transportation Authority for an amount not to exceed $3,000,000, in a form approved by General Counsel. SUMMARY In conjunction with the City of Anaheim and the City of Placentia, the Orange County Transportation Authority (OCTA) is performing the Orangethorpe Avenue Grade Separation Project. The project consists of raising the grade of Orangethorpe Avenue and connector streets (Crowther Avenue and Miller Avenue) to pass over the Burlington Northern and Santa Fe (BNSF) railroad tracks. The location of numerous bridge abutments will necessitate the relocation of the Orange County Sanitation District's (OCSD) facilities. The relocation of OCSD's facilities is OCSD Project No. 2-77. The project will be constructed by OCTA to OCSD standards. Project construction is scheduled to begin in February 2013. OCSD has the right to use the public right-of-way within our service boundary to construct, operate, and maintain facilities for wastewater transportation (CA Health and Safety Code Section 4759 and 4759.1); however, the right is considered a statutory franchise right and as such the principle of "prior in time, prior in right" applies. The public right-of-way existed before OCSD's facility; therefore, it is OCSD's responsibility to pay for the relocation of its facilities. Per the terms of the Reimbursement Agreement, OCSD will reimburse OCTA for the construction costs of the project. OCTA has agreed to pay for the design costs and construction administration costs. Page 1 of 2 PRIOR COMMITTEE/BOARD ACTIONS N/A ADDITIONAL INFORMATION OCSD's pipeline is located in the City of Anaheim public right-of-way and on Orange County Flood Control District (OCFCD) property by encroachment permit. OCSD's facilities consist of a 42-inch to 52-inch reinforced concrete pipe that conveys flow from north to south from Carbon Canyon Creek across the railroad right-of-way and OCFCD property to Miller Avenue. Per the reimbursement agreement, OCSD has the right to have an on-site inspector at the construction site to oversee the work. Due to the fact that OCSD and OCTA are represented by the same law firm, OCSD has been represented by Rutan and Tucker, LLP concerning this project and agreement. CEQA The City of Placentia is the lead agency under the California Environmental Quality Act (CEQA), for the proposed Orangethorpe Grade Separation Project. Resolution No. OCSD XX-XX makes CEQA findings required from the OCSD as a CEQA responsible agency and then makes a finding that the City of Placentia have satisfied CEQA compliance. BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This request complies with authority levels of the Sanitation District's Delegation of Authority. This item has been budgeted. (Line item: Section 8, Page 23). Project contingency funds will not be used for this agreement. Date of Approval Contract Amount Continnencv N/A N/A N/A ATTACHMENTS 1. Resolution 2. Reimbursement Agreement WS:sa Page 2 of 2 RESOLUTION NO. OCSD 12-XX CERTIFYING THE NOTICE OF EXEMPTION FOR THE ORANGETHORPE GRADE SEPARATION PROJECT, FINDING THAT LEAD AGENCY CEQA COMPLIANCE OBLIGATIONS HAVE BEEN FULFILLED, AND RELATED ACTIONS A RESOLUTION OF THE BOARD OF DIRECTORS OF THE ORANGE COUNTY SANITATION DISTRICT CERTIFYING THE NOTICE OF EXEMPTION FOR THE ORANGETHORPE GRADE SEPARATION PROJECT; AND FINDING THAT LEAD AGENCY CEQA COMPLIANCE OBLIGATIONS HAVE BEEN FULFILLED. The Board of Directors of the Orange County Sanitation District does hereby find: A. The Orange County Sanitation District (OCSD) owns the sewers in the Orangethorpe Grade Separation Project area. B. The Cities of Placentia and Anaheim have contracted with the Orange County Transportation Agency (OCTA) to design and construct the Orangethorpe Grade Separation Project. C. The Orange County Transportation Agency (OCTA) has proposed the relocation of the sewers along Orangethorpe to accommodate a railroad grade separation. D. The City of Placentia is the lead agency under the California Environmental Quality Act (CEQA), for the proposed protection/relocation of the Orangethorpe Grade Separation Project. E. The City of Placentia prepared a Notice of Exemption for the Orangethorpe Grade Separation Project pursuant to the requirements of the California Environmental Quality Act (CEQA), the State CEQA Guidelines. F. The City of Placentia certified the project and the Notice of Exemption on November 17, 2008 and filed a Notice of Determination on November 18, 2008. G. No comments or challenges were filed during the 30-day review period for the Project. H. OCSD is a responsible agency under the California Environmental Quality Act (CEQA). NOW, THEREFORE, the Board of Directors of Orange County Sanitation District, DOES HEREBY RESOLVE, DETERMINE, AND ORDER: 661060.1 Mty:11cMalva/bou"*14 dCo im AgeMaSP2010/06Ga.,p,w,c2-77GSP/O .02-CEQARuolmlov6e2-77-Anl,dac Section 1: That the Board of Directors certifies the Notice of Exemption as complete and adequate in that it addresses all of the environmental effects of the Project and fully complies with the requirements of CEQA and the CEQA Guidelines environmental analysis procedures. All of the information comprising the Notice of Exemption is on file with the City of Placentia at 401 East Chapman Avenue, Placentia, California. Section 2: The Board of Directors finds that Project has no known potentially significant environmental impacts. Section 3: The Board of Directors finds that no substantial evidence has been presented which would call into question the facts and conclusions of the City of Placentia in preparing and filing a Notice of Exemption. Section 4: The Board of Directors finds that the Notice of Exemption reflects the independent review and judgment of the Orange County Sanitation District. Section 5: The Board of Directors finds that a Notice of Exemption serves as adequate and appropriate environmental documentation for the Project. PASSED AND ADOPTED at a regular meeting held XX, 2012. Chair, Orange County Sanitation District ATTEST: Clerk of the Board 661060.1 Mty:11ecMiva/bovd�Pa14l dCo im AgeMaSP2010/06GavgcWgg-77GSP/O .02-CEQARuolmlov6e2-77-Anl,dac M OCTA orange County Transportation Authority UTILITY AGREEMENT Page 1 of 3 Project County Route Location Orangethorpe Orange Orangethoipe Orangemorye Avenue Grade Rail Corridor Avenue west of Separation Miller to east of Traub Federal Aid No. N/A Notice OCSD-t Number Owners File:S0205-1 OCSD Utility Agreement.dom Data June 6,2012 Grade ® Yes ❑ No Separation: UTILITY AGREEMENT NO: OCSD-1 DATE The Orange County Transportation Authority,(OCTA)proposes to construct a grade separation at Orangethorye Avenue west of Miller to east of Traub(Grade Separation Project)on behalf of the Cities of Anaheim and Placentia. Orange County Sanitation District (OCSD) owns and maintains sanitary sewer facilRies (Facilities) within the boundaries of the Grade Separation Project.The Facilities must be relocated in order to construct the Grade Separation Project. To accommodate the Grade Separation Project, It Is hereby mutually agreed that: L WORK TO BE PERFORMED In accordance with Notice to Owner (in the form attached hereto as Exhibit 'A"), OCTA shall relocate the Facilities (Facilities Relocation) on behalf of OCSD within the street rights of way of the Cities of Anaheim and Placentia, OCTA will provide plans, specifications and estimates(Relocation Plans)for the Facilities Relocation to OCSD for review and approval at least 30 calendar days before advertisement of the Relocation Plans for bids. The Relocation Plans will be prepared in conformance with OCSD's regulations, procedures, manuals, standards and specifications, and other applicable agency standards. OCTA shall perform the Facilities Relocation in substantial conformance with the Relocation Plans. No modification,waiver or amendment of the Relocation Plans will be valid unless the same is in writing and executed by duly authorized representatives of OCTA and OCSD. OCTA shall not interrupt the sewer services provided by OCSD to its customers without the prior written approval of OCSD,OCTA's Contractor shall make every effort to minimize the duration of temporary sewer facility use.OCSD shall be responsible for the cost and expense of providing temporary sewer facilities to avoid sewer service interruption. II. LIABILITY FOR WORK The Facilities will be relocated in accordance with OCSD's statutory franchise in Me streets of Me Cities of Anaheim and Placentia for this relocation,OCTA's expense shall be Zero(0%)and OCSD's expense shall be One Hundred Percent(100%). The estimated cost to OCSD for the Facilities Relocation is Two million three hundred thirty-four thousand and nine hundred thirty-eight Dollars ($2,334,938)(Estimated Cost); provided that,no contract to perform the FacilMies Relocation will be let for a sum exceeding Three million Dollars$3,000,000 without the prior,written consent of the Board of directors of OCSD. OCSDacknowledgesthat Estimated Cost is an estimate only,and that OCTA does not warrant,promise,or otherwise,represent that the facilities Relocation will or can be performed for the Estimated Cost. Nothing in this agreement limits or modifies OCSD's obligation by law to relocate its Facilities to accommodate the Grade Separation Project. III, PERFORMANCE OF WORK: OCTA agrees to perform the Facilities Relocation with its own forces or to cause the Facilities Relocation to be performed by OCTA's contractor as a component of the contract for the Grade Separation Project, and to furnish all necessary labor,materials,tools and equipment required therefore,and to prosecute said work diligently to completion. OCTA agrees to require all legally required bonds,including a Faithful Performance Bond and a Labor and material Bond. IV. PAYMENT FOR WORK OCSD shall be Polly responsible for the reasonable payment of Me cost and expense to construct the Facilities Relocation. All cost incurred by OCTA to construct the Facilities Relocation (OCSD Project Costs), will be billed pursuant to the terms and conditions of this Agreement. OCSD shall pay its share of the actual coat of the OCSD Project Cost within 90 days after receipt of OCTA's itemized bill in qulntuplicate, signed by a responsible official of OCTA and prepared on OCTA letterhead,compiled on Me basis of the actual cost and expense incurred and charged or allocated to the Facilities Relocation in accordance with Me applicable system of accounts prescribed to OCSD by OCTA. Revised 10/31/2012 M OCTA orange County Transportation Minorlry UTILITY AGREEMENT Page 2 of 3 It Is understood and agreed that the OCTA will not pay for any betterment or increase In capacity of the Facilities. Not more frequently than monthly,but not less than quarterly,OCTA will prepare and submit progress bills for OCSD Project Costs incurred as of the billing date,less estimated credits,if any,applicable to completed work. The OCTA shall submit a final bill to the OCSD for OCSD Project Costs within 90 days after the completion of the Facilities Relocation. The final bill shall be in the form of an itemized statement of the total OCSD Project Costs attributable to the Facilities Relocation, less credits,if any,and less any amounts covered by progress payments. Any and all increases in the OCSD Project Costs that are fine direct result of deviations from the work described in Section I of this Agreement shall have the prior concurrence of OCTA. Detailed records from which the bill is compiled shall be retained by the OCTA for a period of three years from the date of the final bill and will be available for audit by OCSD and/or Federal auditors. V. INSURANCE OCTA will require its, Contractors and sub-contractors to maintain the following insurance coverage during the entire period of the Facilities Relocation at levels no less than required by law,with the following minimum Insurance coverage: a. Commercial General Liability, to include Products/Completed Operations, Independent Contractors, Contractual Liability and Personal Injury Liability with at least$5,000,000 of coverage. b. Automobile Liability Insurance with the following limits: 1) Bodily Injury and Property Damage with limits of$1,000,000.00 per accident combined single limit; G. Worker's Compensation with limits as required by the State of California. VI, WARRANTY OCTA will obtain on behalf of OCSD a one-year warranty on the work to be performed for all of OCSD sewer facilities from OCTA's construction contractor. OCTA will promptly notify OCSD of the commencement of the warranty period. Such warranty will read as follows: 'Contractor guaranteed for a period of one (1) year from the date of final acceptance of the work by OCTA(for OCSD) that the Contractor will repair or move and replace any work,together with any other work which may be displaced In so doing,this Is found to be defective in workmanship and/or materials without any expense to OCTA or its assigns, ordinary wear and tear excepted. If Contractor fails to comply with this warranty within one (1)week after being notified in writing, OCTA(OCSD) or is assigns are authorized to proceed to have the defects remedied at Contractors expense. Contractor will pay the cost and charges thereof immediately on demand. If, in the opinion of OCTA(OCSD)or its assigns, defective work detected during the guarantee period creates a dangerous condition or requires immediate correction or modification to prevent further loss to OCTA (OCSD) or its assigns or to prevent interruption of OCTA's(OCSD)or its assigns'operations, OCTA(OCSD)or its assigns will be authorized to repair the condition without prior notice to the Contractor and Contractor will pay the cost and charges thereof immediately upon demand. Contractor's obligations under this section are in stil n to Contractor's other express or implied assurances under the Construction Contract and State and in no way diminish any other rights that OCTA (OCSD) or its assigns may have against Contractor for faulty materials,equipment,or work. Contractor agrees that this warranty and guarantee will be freely assignable to the Orange County Sanitation District without any further notice to or consent from Contractor. VII INDEMNIFICATION a. OCTA shall defend, indemnify and hold harmless OCSD, and its officers, agents, elected officials, and employees, from and against all liability,claims, losses and demands,including defense costs and reasonable attorney's fees,whether resulting from court action or otherwise,arising out of the acts or omissions of OCTA,its officers,agents,or employees, in the performance of this Agreement,excepting acts or omissions directed by OCSD,or by its officers,agents or employees,acting within the scope of their employment,for which the OCSD agrees to defend and indemnify OCTA in a like manner. This indemnity shall survive even after the termination of this Agreement. b. OCSD shall defend, indemnify and hold harmless OCTA, and its officers, agents, elected officials, and employees from and against all liability,claims, losses and demands,including defense costs and reasonable abomeye fees,whether resulting from court action or otherwise,arising out of the acts or omissions of OCSD,its officers,agents,or employees,in the performance of the Agreement,excepting acts or omissions directed by OCTA,or by its officers,agents,or employees,acting within the scope of their employment,for which OCTA agrees to defend and indemnify OCSD in a like manner. This indemnity shall survive even after the termination of this Agreement. VIII GENERAL CONDITIONS If the Grade Separation Project is canceled or modified so as to eliminate the necessity for the Facilities Relocation,OCTA will notify OCSD in writing.Thereafter,the parties will meet and confer to discuss an amendment to this agreement that shall provide for close out of the work. OCTA agrees to cease all work under this agreement on or before the effective date of any such notice. The amendment shall provide that OCTA reimburse OCSD the cost of the Facilities Relocation Project. Such costs shall include but not be limited to the cost of labor and materials. Revised 10/31/2012 M OCTA orange County Transportation Authority UTILITY AGREEMENT Page 3 of 3 OCTA shall submit a Notice of Completion to the OCSD within 30 days of the completion of work described herein. The parties intend the Facilities Relocation to be made within the street rights of way of the Cities of Anaheim and Placentia,subject to all of the rights,restrictions,and limitations of OCSD's statutory franchise in the Cities streets. OCTA agrees to provide all slag, employees, agents, consultants and contactors deemed necessary and appropriate by OCTA to manage, administer, coordinate and oversee engineering design, right-of-way, construction and construction management of the Facilities Relocation. As deemed necessary and appropriate by OCTA, OCTA agrees further to prepare construction contract documents, advertise and award construction contacts, and conduct construction administration and construction management for the Facilities Relocation. OCTA will invite OCSD staff to all construction progress meetings that are focused on the Facilities Relocation. OCTA will provide OCSD staff with contactor schedules and updates. OCTA will notify OCSD 48 hours prior to the need for an inspection. OCTA will cause OCSD to be provided with'es-built drawings of the relocated Facilities upon completion of the Facilities Relocation. OCSD will perfume a recorded closed-circuit television (cctv)review of the Sewer Facilities before and after construction and within the last 20 business days of the warranty period. OCSD will provide a copy,of the recordings to OCTA promptly after each review is performed. OCSD shall be entitled to a 60-day submittal review period OCSD shall be entitled to have an on-site Inspector In the work area. OCSD shall have ability to witness and verify geotechnical testing and survey elevations. Both parties agree to collaborate and cooperate with staff, consultants, employees, agents and contactors during design and construction of me Facilities Relocations. This agreement contains the entire agreement between the parties and supersedes any prior oral or written statements or agreements between the parties. UTILITY AGREEMENT NO.00SD-1 IN WITNESS WHEREOF,the parties have executed this AGREEMENT as of,and this AGREEMENT shall be effective as of,the'Date"set forth on the face page of this AGREEMENT. ORANGE COUNTY SANITATION DISTRICT: By: Print Name: Title: Approver)As To Form: By: Kathy Jenson Special Counsel ORANGE COUNTY TRANSPORTATION AUTHORITY, A public agency By: Print Name: Title: Approved As To Form: By: Kennard R.Smart,Jr. General Counsel Revised 10/312012 Return to Agenda OPERATIONS COMMITTEE Meeting Date TOBd.of Dir. 11/D]/12 1'1z8/12 AGENDA REPORT ItemNumber Item Number a Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Nick Arhontes, P.E., Director of Facilities Support Services Engineering Manager: Mark Esquer, P.E., FSSD SUBJECT: PLANT 1 ASPHALT REPLACEMENT JOB NO. FR11-025 PLANT 2 ASPHALT REPLACEMENT JOB NO. FR11-026 GENERAL MANAGER'S RECOMMENDATION A. Award a contract to the lowest responsive and responsible bidder, Century Paving, Inc., for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026, for a total amount not to exceed $448,309; and, B. Approve a contingency of$89,661 (20%). SUMMARY The project includes replacing and/or repairing deteriorated and damaged asphalt pavement in various locations within Reclamation Plant No.1 and Treatment Plant No.2. This project scope is based on the Bucknam and Associates Pavement Condition Assessment report and an Orange County Sanitation District (Sanitation District) staff inspection from January 2008. The Contractor will also repair cracks, pot holes, as well as deteriorated concrete curbs and gutters. The repair work also includes approximately 54,000 cubic yards of slurry seal and/or approximately 2,400 tons of asphalt concrete repair overlay. The Sanitation District advertised for bids on August 28, 2012 and sealed bids were received on October 9, 2012. The bids were evaluated in accordance with the Sanitation District's policies and procedures. Century Paving, Inc. was deemed the lowest responsive, responsible bidder. Staff recommends awarding a contract to Century Paving, Inc. for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026, for a total amount not to exceed $448,309. Page 1 of 2 Summary information on the bid opening for Plant 1 Asphalt Replacement Job No. FR11-025 and Plant 2 Asphalt Replacement Job No. FR11-026 is as follows: Project Budget $1,000,000 Contract Budget $ 503,000 Engineer's Estimate $ 503,000 Bidder Amount of Bid Century Paving, Inc. $448,309 Command Performance Constructors, Inc. $472,599 Ben's Asphalt $539,345 All American Asphalt $732,122 PRIOR COMMITTEE/BOARD ACTIONS None ADDITIONAL INFORMATION The overall goal of this repair project is to reduce the life cycle cost of maintaining asphalt paving within the plants by performing preventative maintenance at the appropriate time to maintain the asset properly. Slurry sealing existing pavements will last about eight (8) years. This is the first of future pavement management projects. CEQA N/A BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This request complies with authority levels of the Sanitation District's Delegation of Authority. This repair will be funded through the Small Capital Replacement /Rehabilitation Project SP-34 (Budget Update Fiscal Year 2012-2013 and 2013-2014 Misc. & Support Projects; Section 8— Page 111). This Small Capital fund is used to pay for capital repairs and/or direct replacements. The SP-34 budget is adequate to cover these two projects. Date of Approval Contract Amount Continnencv 11/28/12 $448,309 $89,661 (20%) ATTACHMENT The following attachment(s) maybe viewed on-line at the OCSD website (1 w .ocsd.com) with the complete agenda package and attachments: ( Service Agreement JF:am:dm:gc Page 2 of 2 SERVICE AGREEMENT Plant 1 and 2 Asphalt Replacement Specification No. FR11-025 and FRI1-026 THIS AGREEMENT is made and entered into as of the date fully executed below by and between Orange County Sanitation District, with a principal place of business at 10844 Ellis Avenue, Fountain Valley, CA 92708-7018 (hereinafter referred to as "OCSD") and Century Paving, Inc. with a principal business at 14630 East Firestone Blvd., La Mirada, CA 90638 (hereinafter referred to as "Contractor") collectively referred to as the "Parties". RECITALS WHEREAS, OCSD desires to retain the services of Contractor for asphalt replacement at OCSD plant numbers 1 and 2 ("Services"); and WHEREAS, OCSD has chosen Contractor to conduct Services in accordance with Purchasing Resolution No. OCSD07-04; and WHEREAS, on November 28, 2012, the Board of Directors of OCSD, by minute order, authorized execution of this Agreement between OCSD and Contractor; and WHEREAS, Contractor is qualified by virtue of experience, training, and education and expertise to accomplish such Services, NOW THEREFORE, in consideration of the promises and mutual benefits exchanged between the Parties, it is mutually agreed as follows: 1. Introduction 1.1 This Agreement and all exhibits hereto (called the "Agreement") is made by OCSD and Contractor. The Terms and Conditions herein exclusively govern the purchase of Services as described in the Scope of Work, attached hereto and incorporated herein by reference as Exhibit IN.. 1.2 Exhibits to this Agreement are incorporated by reference and made a part of this Agreement as though fully set forth at length herein. Exhibits to this Agreement are as follows in order of precedence: Exhibit"A" Technical Specifications as Modified by Addendum No.1 to the Notice Inviting Bids Exhibit"B" Safety Requirements and Human Resources Policies Exhibit"C" Bid from Contractor Exhibit"D" Acknowledgement of Insurance Requirements 1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and any of the provisions of the exhibits hereto, the provisions of this Agreement shall in all respects govern and control. 1.4 The provisions of this Agreement may be amended or waived only by a writing executed by authorized representatives of both Parties hereto. 1.5 The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any Paragraph or provision hereof. Orange County Sanitation District 1 of 7 Specification Nos. FR11-025&FR11-026 1.6 The term "days", when used in the Agreement, shall mean calendar days, unless otherwise noted as business days. 1.7 The term "hours", when used in this Agreement, shall be as defined in Exhibit"A". 1.8 Contractor shall provide OCSD with all required premiums and/or overtime work at no charge beyond the price provided under"Compensation" below. 1.9 Except as expressly provided otherwise, OCSD accepts no liability for any expenses, losses, or action incurred or undertaken by Contractor as a result of work performed in anticipation of purchases of said services by OCSD. 2. Compensation Compensation for this project shall not exceed the total amount of Four Hundred Forty-eight Thousand Three Hundred Nine and 00/00 Dollars ($448,309.00). 3. Payments Payments shall be made upon approval by OCSD Engineer, John Falkenstein or his designee, of invoices submitted for work completed as described in Exhibit "A". OCSD, at its sole discretion, shall be the determining party as to whether the tasks and deliverables have been satisfactorily completed. 4. Invoices 4.1 OCSD shall pay within 30 days of completion and receipt and approval by OCSD Engineer of an itemized invoice, in a form acceptable to OCSD to enable audit of the charges thereon. Contractor shall not pay less than the prevailing wage, if applicable. Invoices shall include the Purchase Order Number. 4.2 Invoices shall be mailed by Contractor to OCSD'S Administration Office at the following address: Accounts Payable, Finance Department, Orange County Sanitation District, 10844 Ellis Avenue, Fountain Valley, CA 92708-7018. 5. Audit Rights Contractor agrees that, during the term of this Agreement and for a period of three (3) years after its termination, OCSD shall have access to and the right to examine any directly pertinent books, documents, and records of Contractor relating to the invoices submitted by Contractor pursuant to this Agreement. 6. Scope of Work Subject to the terms of this Agreement, Contractor shall perform the Services identified in Exhibit "A". Contractor shall perform said Services in accordance with generally accepted industry and professional standards. 7. Modifications to Scope of Work Requests for modifications to the Scope of Work hereunder can be made by OCSD at any time. All modifications must be made in writing and signed by both Parties. 6. Agreement Tenn The services provided under this Agreement shall be completed within 150 days from the date of notice to proceed. 9. Termination 9.1 OCSD reserves the right to terminate this Agreement for its convenience, with or without cause, in whole or in part, at any time, by written notice from OCSD, (delivered by certified mail, return receipt requested) of intent to terminate. Upon receipt of a termination notice, Contractor shall immediately discontinue all work under this Agreement (unless the notice directs otherwise). OCSD shall thereafter, within thirty (30) days, pay Contractor for work performed (cost and fee) to the date of termination. Contractor expressly waives any claim to receive Orange County Sanitation District 2 of 7 Specification Nos. FR11-025&FR11-026 anticipated profits to be earned during the uncompleted portion of this Agreement. Such notice of termination shall terminate this Agreement and release OCSD from any further fee, cost or claim hereunder by Contractor other than for work performed to the date of termination. 9.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD'S determination that Contractor is not meeting specification requirements, if the level of service is inadequate, or any other default of this Agreement. 9.3 OCSD may also immediately cancel for default of this Agreement in whole or in part by written notice to Contractor: • if Contractor becomes insolvent or files a petition under the Bankruptcy Act; or • if Contractor sells its business; or • if Contractor breaches any of the terms of this Agreement; or • if total amount of compensation exceeds the amount authorized under this Agreement. 9.4 All OCSD property in the possession or control of Contractor shall be returned by Contractor to OCSD upon demand, or at the termination of this Agreement, whichever occurs first. 10. Insurance Contractor and all subcontractors shall purchase and maintain, throughout the life of this Agreement and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Acknowledgement of Insurance Requirements (attached hereto and incorporated herein as Exhibit "D"). Contractor shall not commence work under this Agreement until all required insurance is obtained in a form acceptable to OCSD, nor shall Contractor allow any subcontractor to commence service pursuant to a subcontract until all insurance required of the subcontractor has been obtained. Failure to maintain required insurance coverage shall result in termination of this Agreement. 11. Indemnification and Hold Harmless Provision Contractor agrees to save, indemnify, defend and hold harmless OCSD against any and all liability, claims, judgments, cost and demands, including demands arising from injuries or death of persons and damage to property, arising directly or indirectly out of the negligence or willful misconduct of Contractor, its employees or agents, in relation to the rendition of services pursuant to this Agreement, except claims or litigations arising through the sole negligence or willful misconduct of OCSD. Contractor agrees to reimburse OCSD for any expenditure, including reasonable attorney's fees, OCSD may incur by reason of such matters, and, if requested by OCSD, will defend any such suits at the cost and expense of Contractor. 12. Warranty 12.1 Manufacturer's standard warranty shall apply. All manufacturer warranties will begin at date of completion of this Contact. 12.2 Contractor's warranty: If, within the 12-month period following completion of its Services, OCSD informs Contractor that any part of the Services fails to meet the standards required under this Agreement, Contractor shall, within the time agreed to by OCSD and Contractor, take all such actions as are necessary to correct or complete the noted deficiency(ies). 13. Freight(F.O.B. Destination) Contractor assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other services associated with delivery of all products deemed necessary under this Agreement. Orange County Sanitation District 3 of 7 Specification Nos. FRI I-025&FRI1-026 14. Force Maieure Neither party shall be liable for delays caused by accident, flood, acts of God, fire, labor trouble, war, acts of government or any other cause beyond its control, but said party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force Majeure condition may be rescheduled by mutual consent or may be eliminated from the Agreement. 15. Independent Contractor It is agreed that Contractor shall act and be an independent contractor and not an agent or employee of OCSD, and shall obtain no rights to any benefits which accrue to OCSDS employees. 16. Limitations upon Subcontracting and Assignment Contractor shall not delegate any duties nor assign any rights under this Agreement without the prior written consent of OCSD. Any such attempted delegation or assignment shall be void. 17. Performance Time is of the essence in the performance of this Agreement and the provisions hereof. 16. Licenses. Permits. Ordinances and Reaulations Contractor represents and warrants to OCSD that it has obtained all licenses, permits, qualification and approvals of whatever nature that are legally required to engage in this work. Any and all fees required by State, County, City and/or municipal laws, codes and/or tariffs that pertain to work performed under the terms of this Agreement will be paid by Contractor. 19. Applicable Laws and Regulations Contractor shall comply with all applicable federal, state, and local laws, rules, and regulations. Contractor also agrees to indemnify and hold harmless from any and all damages and liabilities assessed against OCSD as a result of Contractor's noncompliance therewith. Any permission required by law to be included herein shall be deemed included as a part of this Agreement whether or not specifically referenced. 20. Familiarity with Work By executing this Agreement, Contractor warrants that: 1) it has investigated the work to be performed; 2) it has investigated the site of the work and is aware of all conditions there; and 3) it understands the facilities, difficulties and restrictions of the work under this Agreement. Should Contractor discover any latent or unknown conditions materially differing from those inherent in the work or as represented by OCSD, it shall immediately inform OCSD of this and shall not proceed, except at Contractor's risk, until written instructions are received from OCSD. 21. Public Contracts Law OCSD has been advised by the State of California Director of Industrial Relations of its determination of the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Contract. Contractor agrees that not less than said prevailing rates shall be paid to workers employed on this Contract as required by Labor Code Section 1774 of the State of California. 22. Governing Law This Agreement shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in Orange County, in the event any action is brought in connection with this Agreement or the performance thereof. 23. Breach The waiver of either party of any breach or violation of, or default under, any provision of this Agreement, shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Agreement or default thereunder. Any breach by Contractor to which OCSD does not object shall not operate as a waiver of OCSDS rights to seek remedies available to it for any subsequent breach. Orange County Sanitation District 4 of 7 Specification Nos. FRII-025&FR11-026 24. Remedies In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods or Services or repudiates its obligations under this Agreement, or if OCSD rejects the goods or Services or revokes acceptance of the goods or Services, OCSD may (1) cancel the Agreement; (2) recover whatever amount of the purchase price OCSD has paid, and/or (3) 'cover' by purchasing, or contracting to purchase, substitute goods or Services for those due from Contractor. In the event OCSD elects to 'cover' as described in (3), OCSD shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods or Services and the contract price, together with any incidental or consequential damages. 25. Dispute Resolution 25.1 In the event of a dispute as to the construction or interpretation of this Agreement, or any rights or obligations hereunder, the Parties shall first attempt, in good faith, to resolve the dispute by mediation. The Parties shall mutually select a mediator to facilitate the resolution of the dispute. If the Parties are unable to agree on a mediator, the mediation shall be conducted in accordance with the Commercial Mediation Rules of the American Arbitration Agreement, through the alternate dispute resolution procedures of Judicial Arbitration through Mediation Services of Orange County ("JAMS'), or any similar organization or entity conducting an alternate dispute resolution process. 25.2 In the event the Parties are unable to timely resolve the dispute through mediation, the issues in dispute shall be submitted to arbitration pursuant to California Code of Civil Procedure, Part 3, Title 9, Sections 1280 at seq. For such purpose, an agreed arbitrator shall be selected, or in the absence of agreement, each party shall select an arbitrator, and those two arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to California Code of Civil Procedure Section 1283.05. The arbitrator, or three arbitrators acting as a board, shall take such evidence and make such investigation as deemed appropriate and shall render a written decision on the matter in question. The arbitrator shall decide each and every dispute in accordance with the laws of the State of California. The arbitrators decision and award shall be subject to review for errors of fact or law in the Superior Court for the County of Orange, with a right of appeal from any judgment issued therein. 26. Survival The provisions of this Agreement dealing with Payment, Warranty, and Forum for Enforcement, shall survive termination or expiration of this Agreement. 27. Severability If any section, subsection, or provision of this Agreement, or any agreement or instrument contemplated hereby, or the application of such section, subsection, or provision is held invalid, the remainder of this Agreement or instrument in the application of such section, subsection or provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate the expectations of the Parties. 28. Disclosure Contractor agrees not to disclose, to any third party, data or information generated from this project without the prior written consent from OCSD. 29. Third Party Rights Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than OCSD and Contractor. 30. Damage to OCSD's Property Any of OCSUS property damaged by Contractor, any subcontractors or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OCSD. 31. Safety Reauirements and Human Resources (HR) Policies Contractor shall adhere to the Safety Requirements and HR Policies in Exhibit 'B" hereto. Orange County Sanitation District 5 of 7 Specification Nos. FRf 1-025&FRf 1-026 32. Attorney's Fees If any action at law or inequity or if any proceeding in the form of an Alternative Dispute Resolution (ADR) 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. 33. Authority to Execute The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the Parties are formally bound. 34. South Coast Air Quality Management District's (SCAQMD) Requirements It is Contractor's responsibility that all equipment furnished and installed be in accordance with the latest rules and regulations of the South Coast Air Quality Management District (SCAQMD). All contract work practices, which may have associated emissions such as sandblasting, open field spray painting or demolition of asbestos containing components or structures, shall comply with the appropriate rules and regulations of the SCAQMD. 35. Regulatory Requirements Contractor shall perform all work under this Agreement in strict conformance with applicable federal, state, and local regulatory requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, and 261, Title 22, 23, and California Water Codes Division 2. 36. Authority to Execute The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the Parties are formally bound. 37. Read and Understood By signing this Agreement, Contractor represents that he has read and understood the terms and conditions of the Agreement. 36. Entire Agreement This Agreement constitutes the entire agreement of the Parties and supersedes all prior written or oral and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof. Orange County Sanitation District 6 of 7 Specification Nos. FRI I-025&FRI1-026 39. Notices All notices under this Agreement must be in writing. Written notice shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by any other overnight delivery service which delivers to the noticed destination and provides proof of delivery to the sender. Any facsimile notice must be followed within three (3) days by written notice. All notices shall be effective when first received at the following addresses: OCSD: Clarice M. Marcin Senior Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Contractor: Century Paving, Inc. IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands the day and year indicated below. ORANGE COUNTY SANITATION DISTRICT Dated: By: Chair Board of Directors Dated: By: Clerk of the Board Dated: By: Contracts/Purchasing Manager CENTURY PAVING, INC. Dated: By: Print Name and Title of Officer IRS Employer's I.D. Number Orange County Sanitation District Approved as to Form: Clarice M. Marcin Date Senior Contracts Administrator Orange County Sanitation District 7 of 7 Specification Nos. FRI I-025&FRI1-026 Orange County Sanitation District Plant 1 and 2 Asphalt Replacement Specification No. FR11-025 and FRI1-026 Exhibit"A" Technical Specifications as Modified by Addendum No.1 to the Notice Inviting Bids Orange County Sanitation District Specification Nos. FRII-025&FRII-026 Return to Agenda OPERATIONS COMMITTEE Meeting Date T018d 4D11. 11/07/12 1 /28 /12 AGENDA REPORT Item Number Rem Number s Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Assistant General Manager Project Manager: Gary Conklin SUBJECT: PHASE 2 FACILITY-WIDE SAFETY ASSESSMENT, PROJECT NO. SP-145-1 GENERAL MANAGER'S RECOMMENDATION A. Approve a budget increase of$630,000, for a total project budget of$930,000; B. Approve a Professional Services Agreement with Arcadis U.S., Inc., for Phase 2 Facility-Wide Safety Assessment, Project No. SP-145-1, providing for services for an amount not to exceed $686,400; and, C. Approve a contingency of$68,640 (10%). SUMMARY Three firms responded to a Request for Proposal (RFP) by submitting proposals. Orange County Sanitation District (Sanitation District) staff reviewed the proposals in accordance with Sanitation District policy. Based on the overall qualifications, expertise, and cost, staff recommends awarding a Professional Services Agreement (PSA)to Arcadis U.S., Inc. (Arcadia)for an amount not to exceed $686,400. A budget increase was anticipated during preparation of the current budget. However, the phase 1 study did not deliver the final budget estimates before the budget preparation deadline. Therefore, staff is now requesting a $630,000 budget increase to $930,000. The Sanitation District has $6 billion in assets that have been constructed over the past 50 years. The safety regulations under which the projects have been constructed have changed and become more stringent over time. The proposed PSA includes a comprehensive safety assessment of Plant Nos. 1 and 2, and the outlying 15 pumping stations. The PSA also includes the development of facility-wide safety standards. This comprehensive study is recommended after several audits were conducted to understand the current state of compliance with current safety regulations and codes. Page 1 of 4 The Sanitation District has continued to deal with historical safety deficiencies on a case-by-rase basis over the last 20 years. The two primary drivers for past work have been new regulatory guidance and potential risk to the employees. While we believe that outstanding risk of potential injuries is very low, the consequence of injuries can remain high. Also, the cost to correct structural deficiencies has been high when dealing with these issues on a case-by-case or change order basis. Upon completion of the study, the Sanitation District will benefit greatly by having consistent facility-wide safety standards, and an implementation plan that prioritizes remaining safety-related upgrades across the Capital Improvement Program (CIP). This includes efficiently packaging safety-related upgrades in the design projects. ADDITIONAL INFORMATION Request for Proposals An RFP which outlined the Scope of Work and selection criteria for this study was sent to all firms who were registered in the Online Bidding System. Three proposals were received. A panel of staff members reviewed and ranked each proposal in accordance with the evaluation process set forth in the Sanitation District's Resolution No. OCSD 07-04, Section 5.07. The proposals were evaluated according to the following criteria: Item I Weighting 1 Understanding of the Scope of Work 20% 2 Project Approach 20% 3 Qualifications of the Team 20% 4 Qualifications of the Firm 20% 5 Price 20% TABLE 1 PROPOSAL EVALUATION Consultant Evaluator Arcadia Bureau Veritas Dansure Rank Rank Rank Reviewer A 1 2 3 Reviewer B 1 2 3 Reviewer C 1 2 3 Reviewer D 1 2 3 Reviewer E 1 2 3 Average Rank 1 2 3 Overall Rankin 1 2 3 Proposal Fee $722,303 $649,913 $862,980 Page 2 of 4 Consultant Evaluator Arcadis Bureau Veritas Dan sure Rank Rank Rank Negotiated Fee Proposal $686,400 The Arcadis team has the combination of safety assessment experience and wastewater treatment plant design experience needed to identify and prioritize safety issues, and provide cost-effective solutions that insure safety and maintain operational efficiency. Staff conducted negotiations with Arcadis to clarify the requirements of the Scope of Work and to establish the final negotiated fee. Elements reviewed include total labor hours and labor-hour distribution by task as related to the work items, labor overhead rates, and profit calculations. These elements are compared to budgeted amounts, RFP requirements, industry standards, historical data, and Sanitation District guidelines. Based on the above, staff determined the final cost proposal to be fair and reasonable for the Scope of Work. Background: In late 2010 through early 2011, staff identified the need for a facility-wide safety assessment in order to develop a comprehensive plan to address safety issues at Sanitation District facilities. A budget increase was anticipated during preparation of the current budget. However, the phase 1 study did not deliver the final budget estimates before the budget preparation deadline. Therefore, staffs are now requesting a $630,000 budget increase to $930,000. Scope of Work: The proposed study will perform a comprehensive health and safety assessment of the Sanitation District wastewater treatment and collections facilities. This includes the treatment plants in Fountain Valley (Plant No. 1) and Huntington Beach (Plant No. 2), and 15 pump stations. The Scope Elements are summarized below: 1. Develop standards (Protocol) for this evaluation and future Sanitation District designs. 2. Inventory all deficiencies. 3. Provide a risk rating (Severity, Frequency, and Probability). 4. Identify alternative solutions with cost estimates. 5. Develop an implementation plan to prioritize safety-related upgrades. These above elements will be applied to the following 19 safety categories: Page 3 of 4 Battery Areas, Classified Locations, Electrical Systems, Emergency Address and Communications Systems, Emergency Lighting and Exit Signs, Ergonomics, Fall Protection, Fire Extinguishers, Floor and Working Space Loads, Gas Detection Systems, Hot Pipes and Surfaces, Lockout/Tagout and Motor Control Center Labeling, Machine Guarding, Noise, Pump Stations, Stairs and Ladders, Tunnels, Ventilation, and Walking Working Surfaces. This study will prioritize safety-related CIP efforts. The goal is to enhance the health and safety of workers and visitors, meet regulatory compliance, reduce liability, provide standards for future improvements, and ultimately provide the most value from safety- related expenditures. PRIOR COMMITTEE/BOARD ACTIONS None. CEQA Notice of Exemption was filed on April 14, 2011. BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This request complies with authority levels of the Sanitation District's Delegation of Authority. This item has been budgeted (FY2012-13, Section 8, Page 114) at$300,000, which is insufficient. Staff recommends a budget transfer of $630,000 from the Replacement, Rehabilitation, and Refurbishment funds (FY2012-13, Section 14, line 13). Date of Auoroval Contract Amount Continaencv 11/28/12 $686,400 $68,840 (10%) ATTACHMENT The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package and attachments: ( Professional Services Agreement (16 pages) GC:sa Page 4 of 4 PLANNING SERVICES AGREEMENT THIS AGREEMENT, is made and entered into to be effective the 28" day of November, 2012, by and between the ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "SANITATION DISTRICT", and ARCADIS U.S., Inc., for purposes of this AGREEMENT hereinafter referred to as "CONSULTANT'. The SANITATION DISTRICT and CONSULTANT are referred to herein collectively as the "Parties" or individually as a "Party." WITNESSETH: WHEREAS, the SANITATION DISTRICT desires to engage a consultant for Phase 2 Facility Wide Safety Assessment, Project No. SP-145-1, to provide planning services and produce a study for comprehensive health and safety assessment of the SANITATION DISTRICT wastewater treatment and collections facilities which includes the treatment plants in Fountain Valley (Plant No. 1) and Huntington Beach (Plant No. 2), and 15 pump stations; and, WHEREAS, CONSULTANT is qualified to provide the necessary services in connection with these requirements and has agreed to provide the necessary planning services; and, WHEREAS, the SANITATION DISTRICT has adopted procedures for the selection of planning services and has proceeded in accordance with said procedures to select CONSULTANT to perform this work; and, WHEREAS, at its regular meeting on November 28, 2012 the Board of Directors, by Minute Order, accepted the recommendation of the Operations Committee to approve this AGREEMENT between the SANITATION DISTRICT and CONSULTANT. NOW, THEREFORE, in consideration of the promises and mutual benefits, which will result to the parties in carrying out the terms of this AGREEMENT, it is mutually agreed as follows: 1. SCOPE OF WORK. CONSULTANT agrees to furnish necessary planning services to accomplish those project elements outlined in the Scope of Work attached hereto as "Attachment A", and by this reference made a part of this AGREEMENT. In the event of a conflict between the Scope of Work and this AGREEMENT, the terms of this AGREEMENT shall prevail. A. The CONSULTANT shall be responsible for the professional quality, technical accuracy, and completeness of the work and services furnished by the CONSULTANT under this AGREEMENT, including the work performed by its Subconsultants. Where approval by the SANITATION DISTRICT is indicated, it is understood to be conceptual approval only and does not relieve the CONSULTANT of responsibility for complying with all applicable laws, regulations, codes, industry standards and liability for damages caused by errors, omissions, noncompliance with industry standards, and/or negligence on the part of the CONSULTANT or its Subconsultants. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 1 of 16 B. CONSULTANT is responsible for the quality of work prepared under this AGREEMENT and shall ensure that all work is performed to the standards of best professional practice for clarity, uniformity, and completeness. CONSULTANT shall timely respond to all comments, suggestions, and recommendations from the SANITATION DISTRICT. All comments from the SANITATION DISTRICT, or its agent, shall be incorporated into the report prior to the next review deadline or addressed, in writing, as to why the comment(s) has/have not been incorporated. CONSULTANT shall ensure that each submittal is 100% accurate for the level of work submitted (i.e. correct references, terms, capitalization or equal status, spelling, punctuation, etc.) C. In the event that CONSULTANT's services and/or work product(s) is not to the satisfaction of the SANITATION DISTRICT and/or does not conform to the requirements of this AGREEMENT or the applicable industry standards, the CONSULTANT shall, without additional compensation, promptly correct or revise any errors or deficiencies in its work product(s)within the timeframe specked by the Project Engineer/Project Manager. The SANITATION DISTRICT may charge to CONSULTANT all costs, expenses and damages associated with any such corrections or revisions. D. Any CAD drawings, figures, and other work shall be produced by CONSULTANT and Subconsultants using the SANITATION DISTRICT CAD Manual. Conversion of CAD work from any other non-standard CAD format to the SANITATION DISTRICT format shall not be acceptable in lieu of this requirement. Electronic files shall conform to the Format for Deliverables listed in "Attachment A", Scope of Work. Any changes to these specifications by the CONSULTANT require advance written approval of the SANITATION DISTRICT. E. All planning services performed by the CONSULTANT, including, but not limited to, all drafts, data, correspondence, proposals, and reports compiled or composed by the CONSULTANT, pursuant to this AGREEMENT, are for the sole use of the SANITATION DISTRICT, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the SANITATION DISTRICT. This provision does not apply to information that (a)was publicly known, or otherwise known to the CONSULTANT, at the time that it was disclosed to the CONSULTANT by the SANITATION DISTRICT, or(b)subsequently becomes publicly known to the CONSULTANT other than through disclosure by the SANITATION DISTRICT. Except for Subconsultants covered by Section 2 (a) neither the documents nor their contents shall be released to any third party without the prior written consent of the SANITATION DISTRICT. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 2 of 16 2. COMPENSATION. Total compensation shall be paid to CONSULTANT for services performed in accordance with the following provisions: A. Total Compensation Total compensation for the services provided under this AGREEMENT shall be in an amount not to exceed Six Hundred Eighty Six Thousand Four Hundred Dollars ($686,400) ('Total Compensation"). Total Compensation to CONSULTANT, which includes burdened labor(salaries plus benefits), overhead, profit, direct costs, and Subconsultant(s)fees and costs, shall not exceed the sum set forth herein. As a portion of the Total Compensation, CONSULTANT shall pay to all Subconsultants, excluding out-of-pocket costs, on an hourly-rate basis per Attachment"B" The SANITATION DISTRICT shall pay to CONSULTANT the actual costs of Subconsullanl fees and charges subject to the limitations set forth herein. Profit for CONSULTANT shall be 9.2851%. Amendments shall be governed by the established profit percentage stated in the RFP. The profit percentage shall apply to the Prime CONSULTANT and all Subconsultants. B. Labor. As a portion of the Total Compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall pay to CONSULTANT a sum equal to the fully burdened salaries (salaries plus benefits, overhead and profit) charged on an hourly-rate basis to this Project. CONSULTANT and Subconsultants will provide the SANITATION DISTRICT with certified payroll records of all employees where time is charged to this Project if requested. The benefits rate is 52% of the burdened labor paid by CONSULTANT. C. Overhead. As a portion of the total compensation to be paid to CONSULTANT, the SANITATION DISTRICT shall compensate CONSULTANT for overhead at a rate equal to 80% of burdened labor paid by CONSULTANT pursuant to this Compensation Section hereof. D. Subconsultants. CONSULTANT shall pay all Subconsultants in accordance with Section 2. Total Compensation. Payments shall be based on the hourly-rates per the schedule attached hereto as Attachment'B". E. Direct Costs. As a portion of the Total Compensation, the SANITATION DISTRICT shall reimburse CONSULTANT and Subconsultants for the expenses described as Other Direct Costs, and identified as allowable on Attachment"D" hereto that CONSULTANT and Subconsultants actually incur in performance of this AGREEMENT. Attachment"D" is hereby incorporated by reference. Reimbursement for Other Direct Costs for CONSULTANT and all Subconsultants shall not include markup of any kind. CONSULTANT shall provide to the SANITATION DISTRICT itemized receipts, regardless of amount, and other documentary records to support each request for reimbursement. SANITATION DISTRICT shall pay to CONSULTANT the actual direct costs for an amount not to exceed Thirty Nine Thousand Six Hundred Seven Dollars ($39,607). The PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 3 of 16 SANITATION DISTRICT shall also pay to CONSULTANT actual costs for equipment rentals, leases or purchases with prior written approval of the SANITATION DISTRICT. All incidental expenses shall be included in overhead pursuant to Compensation Section above. (See Attachment B). 3. REALLOCATION OF TOTAL COMPENSATION. The SANITATION DISTRICT, by its Director of Engineering, shall have the right to approve a reallocation of the incremental amounts constituting the Total Compensation, provided that the Total Compensation is not increased. 4. When the SANITATION DISTRICT determines that all Work authorized under the AGREEMENT is fully complete and that the SANITATION DISTRICT requires no further work from CONSULTANT, or the AGREEMENT is otherwise terminated or expires in accordance with the terms of the AGREEMENT, the SANITATION DISTRICT shall give the Consultant written notice that the AGREEMENT will be closed out. CONSULTANT shall submit all outstanding billings, work submittals, deliverables, reports or similarly related documents as required under the AGREEMENT within thirty (30) days of receipt of notice of AGREEMENT closeout. Upon receipt of CONSULTANT'S submittals, the SANITATION DISTRICT shall commence a closeout audit of the AGREEMENT and will either: I. Give the CONSULTANT a final AGREEMENT Acceptance: or ii. Advise the CONSULTANT in writing of any outstanding item or items which must be furnished, completed, or corrected at the CONSULTANT'S cost. Notwithstanding the final AGREEMENT acceptance, the CONSULTANT will not be relieved of its obligations hereunder, nor will the CONSULTANT be relieved of its obligations to complete any portions of the work, the non-completion of which were not disclosed to the SANITATION DISTRICT (regardless of whether such nondisclosures were fraudulent, negligent, or otherwise), and the CONSULTANT shall remain obligated under all those provisions of the AGREEMENT which expressly or by their nature extend beyond and survive final AGREEMENT Acceptance. Any failure by the SANITATION DISTRICT to reject the work or to reject the CONSULTANT'S request for final AGREEMENT Acceptance as set forth above shall not be deemed to be an acceptance of the work by the SANITATION DISTRICT for any purpose nor imply acceptance of, or AGREEMENT with, the Consultant's request for final AGREEMENT Acceptance. 5. PAYMENT A. CONSULTANT will submit monthly statements covering services and/or work performed for payment for those items included in Section 2 hereof no later than the second Wednesday of the following month and in the format required by the SANITATION DISTRICT. The format must include, as a minimum: 1) current billing period invoicing, 2)current billing period "total percent invoiced to date", 3)future activities, 4) previous billing period "total invoiced to date", 5) potential items that are not included in the Scope of Work, 6) concerns and possible PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 4 of 16 delays, 7) percentage of completion to date, and 8) budget status and amount remaining. Such requests shall be accompanied by such supporting data as may be required by the SANITATION DISTRICT. Monthly Invoice. CONSULTANT shall include in its monthly invoice, a detailed breakdown of costs associated with the performance of any corrections or revisions of the work for that invoicing period. CONSULTANT shall warrant and certify the accuracy of these costs and provide all support documentation required by the SANITATION DISTRICT. CONSULTANT understands that submitted costs are subject to Section 12 Audit Provisions. Upon approval of such payment request by the SANITATION DISTRICT, payment shall be made to CONSULTANT as soon as practicable of one hundred percent (100%)of the invoiced amount on a per-project-element basis. If the SANITATION DISTRICT determines that the work under this AGREEMENT or any specified project element hereunder, is incomplete and that the amount of payment is in excess of: i. The amount considered by the SANITATION DISTRICT's Director of Engineering to be adequate for the protection of the SANITATION DISTRICT; or ii. The percentage of the work accomplished for each project element, The SANITATION DISTRICT may, at the discretion of the Director of Engineering, retain an amount equal to that which insures that the total amount paid to that date does not exceed the percentage of the completed work for the Project in its entirety. B. Upon satisfactory completion by CONSULTANT of the work called for under the terms of this AGREEMENT, and upon acceptance of such work by the SANITATION DISTRICT, CONSULTANT will be paid the unpaid balance of any money due for such work based on the monthly statements, including any retained percentages relating to this portion of the work. C. Upon satisfactory completion of the work performed hereunder and prior to final payment under this AGREEMENT for such work, or prior settlement upon termination of this AGREEMENT, and as a condition precedent thereto, CONSULTANT shall execute and deliver to the SANITATION DISTRICT a release of all claims against the SANITATION DISTRICT arising under or by virtue of this AGREEMENT other than such claims, if any, as may be specifically exempted by CONSULTANT from the operation of the release in stated amounts to be set forth therein. D. Pursuant to the California False Claims Act (Government Code sections 12650- 12655), any CONSULTANT that knowingly submits a false claim to the SANITATION DISTRICT for compensation under the terms of this AGREEMENT may be held liable for treble damages and up to a $10,000 civil penalty for each false claim submitted. This section shall also be binding on all Subconsultants. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 5 of 16 A CONSULTANT or Subconsultant shall be deemed to have submitted a false claim when the CONSULTANT or Subconsultant: (a) knowingly presents or causes to be presented to an officer or employee of the SANITATION DISTRICT a false claim or request for payment or approval; (b) knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim paid or approved by the SANITATION DISTRICT; (c)conspires to defraud the SANITATION DISTRICT by getting a false claim allowed or paid by the SANITATION DISTRICT; (d) knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or decrease an obligation to the SANITATION DISTRICT; or(a) is a beneficiary of an inadvertent submission of a false claim to the SANITATION DISTRICT, and fails to disclose the false claim to the SANITATION DISTRICT within a reasonable time after discovery of the false claim. 6. PREVAILING WAGES To the extent CONSULTANT intends to utilize employees who will perform work during the contract, as more specifically defined under Labor Code Section 1720, CONSULTANT shall be subject to prevailing wage requirements with respect to such employees. 7. DOCUMENT OWNERSHIP— SUBSEQUENT CHANGES TO PLANS AND SPECIFICATIONS—CONSULTANT PERFORMANCE A. Ownership of Documents for the Planning Services performed, all documents in all forms (electronic, paper, etc.), including, but not limited to, studies, sketches, drawings, computer printouts, disk files, and electronic copies prepared in connection with or related to the Scope of Work or Planning Services, shall be the property of the SANITATION DISTRICT. The SANITATION DISTRICT's ownership of these documents includes use of, reproduction or reuse of and all incidental rights, whether or not the work for which they were prepared has been performed. The SANITATION DISTRICT ownership entitlement arises upon payment or any partial payment for work performed and includes ownership of any and all work product completed prior to that payment. This Section shall apply whether the CONSULTANT's Planning Services are terminated: a) by the completion of the AGREEMENT, or b) in accordance with other provisions of this AGREEMENT. Notwithstanding any other provision of this paragraph or AGREEMENT, the CONSULTANT shall have the right to make copies of all such plans, studies, sketches, drawings, computer printouts and disk files, and specifications. B. CONSULTANT shall not be responsible for damage caused by subsequent changes to or uses of the study or deliverable where the subsequent changes or uses are not authorized or approved by CONSULTANT, provided that the service rendered by CONSULTANT was not a proximate cause of the damage. C. The CONSULTANT's performance shall be evaluated by the SANITATION DISTRICT. A copy of the evaluation shall be sent to the CONSULTANT for comment. The evaluation, together with the comments, shall be retained by the PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 6 of 16 SANITATION DISTRICT and may be considered in future CONSULTANT selection processes. 8. INSURANCE A. General i. Insurance shall be issued and underwritten by insurance companies acceptable to the SANITATION DISTRICT. ii. Insurers must have an "A-" Policyholder's Rating, or better, and Financial Rating of at least Class Vill, or better, in accordance with the most current A.M. Best's Guide Rating. However, the SANITATION DISTRICT will accept State Compensation Insurance Fund, for the required policy of Worker's Compensation Insurance subject to the SANITATION DISTRICT's option to require a change in insurer in the event the State Fund financial rating is decreased below"B". Further, the SANITATION DISTRICT will require CONSULTANT to substitute any insurer whose rating drops below the levels herein specified. Said substitution shall occur within 20 days of written notice to CONSULTANT, by the SANITATION DISTRICT or its agent. iii. Coverage shall be in effect prior to the commencement of any work under this AGREEMENT. B. General Liability The CONSULTANT shall maintain during the life of this AGREEMENT, including the period of warranty, Commercial General Liability Insurance written on an occurrence basis providing the following minimum limits of liability coverage: Two Million Dollars ($2,000,000) per occurrence with Two Million Dollars ($2,000,000) aggregate. Said insurance shall include coverage for the following hazards: Premises-Operations, blanket contractual liability (for this AGREEMENT), products liability/completed operations (including any product manufactured or assembled), broad form property damage, blanket contractual liability, independent contractors liability, personal and advertising injury, mobile equipment, owners and contractors protective liability, and cross liability and severability of interest clauses. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement(s). If requested by SANITATION DISTRICT and applicable, XCU coverage (Explosion, Collapse and Underground) must be included in the General Liability policy and coverage must be reflected on the submitted Certificate of Insurance. C. Umbrella Excess Liability The minimum limits of general liability and automotive liability insurance required, as set forth herein, shall be provided for through either a single policy of primary insurance or a combination of policies of primary and umbrella excess coverage. Umbrella excess liability coverage shall be issued with limits of liability which, when combined with the primary insurance, will equal the minimum limits for general liability and automotive liability. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 7 of 16 D. AutomotiveNehicle liability Insurance The CONSULTANT shall maintain a policy of Automotive Liability insurance on a comprehensive form covering all owned, non-owned, and hired automobiles, trucks, and other vehicles providing the following minimum limits of liability coverage: Combined single limit of One Million Dollars ($1,000,000)or alternatively, One Million Dollars ($1,000,000) per person for bodily injury and One Million Dollars ($1,000,000) per accident for property damage. A statement on an insurance certificate will not be accepted in lieu of the actual additional insured endorsement. E. Worker's Compensation Insurance The CONSULTANT shall provide such Workers' Compensation Insurance as required by the Labor Code of the State of California in the amount of the statutory limit, including Employer's Liability Insurance with a minimum limit of One Million Dollars ($1,000,000) per occurrence. Such Worker's Compensation Insurance shall be endorsed to provide for a waiver of subrogation in favor of the SANITATION DISTRICT. A statement on an insurance certificate will not be accepted in lieu of the actual endorsements unless the insurance carrier is State of California Insurance Fund and the identifier"SCIF" and endorsement numbers 2570 and 2065 are referenced on the certificate of insurance. F. Errors and Omissions/Professional Liability CONSULTANT shall maintain in full force and effect, throughout the term of this AGREEMENT, standard industry form professional negligence errors and omissions insurance coverage in an amount of not less than Two Million Dollars ($2,000,000)with limits in accordance with the provisions of this Paragraph. If the policy of insurance is written on a "claims made" basis, said policy shall be continued in full force and effect at all times during the term of this AGREEMENT, and for a period of five (5)years from the date of the completion of the services hereunder. In the event of termination of said policy during this period, CONSULTANT shall obtain continuing insurance coverage for the prior acts or omissions of CONSULTANT during the course of performing services under the term of this AGREEMENT. Said coverage shall be evidenced by either a new policy evidencing no gap in coverage or by separate extended "tail" coverage with the present or new carrier. In the event the present policy of insurance is written on an "occurrence" basis, said policy shall be continued in full force and effect during the term of this AGREEMENT or until completion of the services provided for in this AGREEMENT, whichever is later. In the event of termination of said policy during this period, new coverage shall be obtained for the required period to insure for the prior acts of CONSULTANT during the course of performing services under the term of this AGREEMENT. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 8 of 16 CONSULTANT shall provide to the SANITATION DISTRICT a certificate of insurance in a form acceptable to the SANITATION DISTRICT indicating the deductible or self-retention amounts and the expiration date of said policy, and shall provide renewal certificates not less than ten (10) days prior to the expiration of each policy term. G. Proof of Coverage The CONSULTANT shall furnish the SANITATION DISTRICT with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the SANITATION DISTRICT before work commences. The SANITATION DISTRICT reserves the right to require complete, certified copies of all required insurance policies, including endorsements, effecting the coverage required, at any time. The following are approved forms that must be submitted as proof of coverage: • Certificate of Insurance ACORD Form 25 or equivalent. • Additional Insurance (ISO Form) CG2010 1185 or (General Liability) The combination of(ISO Forms) CG 2010 10 01 and CG 2037 10 01 All other Additional Insured endorsements must be submitted for approval by the SANITATION DISTRICT, and the SANITATION DISTRICT may reject alternatives that provide different or less coverage to the SANITATION DISTRICT. • Additional Insured Submit endorsement provided by carrier for (Auto Liability) the SANITATION DISTRICT approval. • Waiver of Subrogation State Compensation Insurance Fund Endorsement No. 2570 or equivalent. • Cancellation Notice State Compensation Insurance Fund Endorsement No. 2065 or equivalent. H. Cancellation Notice Each insurance policy required herein shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30)days' prior written notice. The Cancellation Section of ACORD Form 25-shall state the required thirty (30) days' written notification. The policy shall not terminate, nor shall it be cancelled, nor the coverage reduced until thirty(30) days after written notice is given to the SANITATION DISTRICT except for nonpayment of premium, which shall require not less than ten (10) days written notice to the SANITATION DISTRICT. Should there be changes in coverage or an increase in deductible or PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 9 of 16 SIR amounts, the CONSULTANT and its insurance broker/agent shall send to the SANITATION DISTRICT a certified letter which includes a description of the changes in coverage and/or any increase in deductible or SIR amounts. The certified letter must be sent to the attention of Contracts Administration, Division 230, and shall be received by the SANITATION DISTRICT not less than thirty(30) days prior to the effective date of the change(s) if the change would reduce coverage or increase deductibles or SIR amounts or otherwise reduce or limit the scope of insurance coverage provided to the SANITATION DISTRICT. I. Primary Insurance All liability policies shall contain a Primary and Non Contributory Clause. Any other insurance maintained by the SANITATION DISTRICT shall be excess and not contributing with the insurance provided by CONSULTANT. J. Separation of Insured All liability policies shall contain a "Separation of Insureds' clause. K. Non-Limiting (if applicable) Nothing in this document shall be construed as limiting in any way, nor shall it limit the indemnification provision contained in this AGREEMENT, or the extent to which CONSULTANT may be held responsible for payment of damages to persons or property. L. Deductibles and Self-Insured Retentions Any deductible and/or self insured retention must be declared to the SANITATION DISTRICT on the Certificate of Insurance. All deductibles and/or self insured retentions require approval by the SANITATION DISTRICT. At the option of the SANITATION DISTRICT, either: the insurer shall reduce or eliminate such deductible or self-insured retention as respects the SANITATION DISTRICT; or the CONSULTANT shall provide a financial guarantee satisfactory to the SANITATION DISTRICT guaranteeing payment of losses and related investigations, claim administration and defense expenses. M. Defense Costs Liability policies shall have a provision that defense costs for all insureds and additional insureds are paid in addition to and do not deplete any policy limits. N. Subconsultants The CONSULTANT shall be responsible to establish insurance requirements for any Subconsultant hired by the CONSULTANT. The insurance shall be in amounts and types reasonably sufficient to deal with the risk of loss involving the Subconsultant's operations and work. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 10 of 16 9. SCOPE CHANGES. In the event of a change in the Scope of Work or a change in the proposed Project, as requested by the SANITATION DISTRICT, the Parties hereto shall execute an Amendment to this AGREEMENT setting forth with particularity all terms of the new AGREEMENT, including, but not limited to any additional CONSULTANT's fees, changes in the period of performance, or modifications to the Scope of Work. CONSULTANT must obtain written approval from the SANITATION DISTRICT Project Manager prior to performing any work outside the approved Scope of Work. When CONSUTLANT foresees the possibility that any of the Project goals will not be met, CONSULTANT shall immediately notify the SANITATION DISTRICT Project Manager to discuss a corrective plan. A corrective plan will be required for any changes to Attachment"A", Scope of Work, schedule, budget, or level of quality. 10. PROJECT TEAM AND SUBCONSULTANTS. CONSULTANT shall provide to SANITATION DISTRICT, prior to execution of this AGREEMENT, the names and full description of all Subconsultants and CONSULTANT's project team members anticipated to be used on this Project under this AGREEMENT by CONSULTANT. CONSULTANT shall include a description of the work and services to be done by each Suboonsultant and each of CONSULTANT's Project team member. CONSULTANT shall include the respective compensation amounts for CONSULTANT and each Subconsultant on a per-project-element basis, broken down as indicated in Section 2 (Compensation). There shall be no substitution of the listed Subconsultants and CONSULTANT's project team members without prior written approval by the SANITATION DISTRICT. 11. ENGINEERING REGISTRATION. The CONSULTANT's employees and Subconsultants are comprised of registered engineers and a staff of specialists and draftsmen in each department. The firm itself is not a registered engineer but represents and agrees that wherever, in the performance of this AGREEMENT, the services of a registered engineer is required, such services hereunder will be performed under the direct supervision of registered engineers who are registered in California. 12. AUDIT PROVISIONS A. SANITATION DISTRICT retains the reasonable right to access, review, examine, and audit, any and all books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify that the CONSULTANT is in compliance with all requirements under this AGREEMENT. The CONSULTANT shall include the SANITATION DISTRICT's right as described above, in any and all of their subagreements, and shall ensure that these rights are binding upon all Subconsultants. B. SANITATION DISTRICT retains the right to examine CONSULTANT's books, records, documents and any other evidence of procedures and practices that the SANITATION DISTRICT determines are necessary to discover and verify all direct and indirect costs, of whatever nature, which are claimed to have been incurred, or anticipated to be incurred or to ensure CONSULTANT's compliance PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 11 of 16 with all requirements under this AGREEMENT during the term of this AGREEMENT and for a period of three (3)years after its termination. C. CONSULTANT shall maintain complete and accurate records in accordance with generally accepted industry standard practices and the SANITATION DISTRICT's policy. The CONSULTANT shall make available to the SANITATION DISTRICT for review and audit, all Project related accounting records and documents, and any other financial data within 15 days after receipt of notice from the SANITATION DISTRICT. Upon SANITATION DISTRICT's request, the CONSULTANT shall submit exact duplicates of originals of all requested records to the SANITATION DISTRICT. If an audit is performed, CONSULTANT shall ensure that a qualified employee of the CONSULTANT will be available to assist SANITATION DISTRICT's auditor in obtaining all Project related accounting records and documents, and any other financial data. 13. LEGAL RELATIONSHIP BETWEEN PARTIES. The legal relationship between the parties hereto is that of an independent contractor and nothing herein shall be deemed to transform CONSULTANT, its staff, independent contractors, or Subconsultants into employees of the SANITATION DISTRICT. CONSULTANT'S staff performing services under the AGREEMENT shall at all times be employees and/or independent contractors of CONSULTANT. CONSULTANT shall monitor and control its staff and pay wages, salaries, and other amounts due directly to its staff in connection with the AGREEMENT. CONSULTANT shall be responsible for hiring, review, and termination of its staff and shall be accountable for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, workers' compensation and similar matters. 14. NOTICES. All notices hereunder and communications regarding the interpretation of the terms of this AGREEMENT, or changes thereto, shall be effected by delivery of said notices in person or by depositing said notices in the U.S. mail, registered or certified mail, return receipt requested, postage prepaid and addressed as follows: ORANGE COUNTY SANITATION DISTRICT 10844 Ellis Avenue Fountain Valley, CA 92708-7018 Attention: Sarah L. Strader, Senior Contracts Administrator CONSULTANT: ARCADIS U.S., Inc. 8001 Irvine Center Drive Suite 1100 Irvine, CA 92618 Attention: Joseph A. Laurie, PE, BCEE All communication regarding the Scope of Work, will be addressed to the Project Manager. Direction from other OCSD staff must be approved by the OCSD Project Manager prior to action from the CONSULTANT. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 12 of 16 15. TERMINATION. The SANITATION DISTRICT may terminate this AGREEMENT at any time, without cause, upon giving thirty(30)days written notice to CONSULTANT. In the event of such termination, CONSULTANT shall be entitled to compensation for work performed on a prorated basis through and including the effective date of termination. CONSULTANT shall be permitted to terminate this AGREEMENT upon thirty (30) days written notice only if CONSULTANT is not compensated for billed amounts in accordance with the provisions of this AGREEMENT, when the same are due. Notice of termination shall be mailed to the SANITATION DISTRICT at the address listed in Paragraph 14. 16. DOCUMENTS AND STUDY MATERIALS. The documents and study materials for this Project shall become the property of the SANITATION DISTRICT upon the termination or completion of the work. CONSULTANT agrees to furnish to the SANITATION DISTRICT copies of all memoranda, correspondence, electronic materials, computation and study materials in its files pertaining to the work described in this AGREEMENT, which is requested in writing by the SANITATION DISTRICT. 17. COMPLIANCE. CONSULTANT certifies by the execution of this AGREEMENT that it pays employees not less than the minimum wage as defined by law, and that it does not discriminate in its employment with regard to race, color, religion, sex or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non-discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. 18. AGREEMENT EXECUTION AUTHORIZATION. Both the SANITATION DISTRICT and CONSULTANT do covenant that each individual executing this document by and on behalf of each Party is a person duly authorized to execute this AGREEMENT for that Party. 19. DISPUTE RESOLUTION. In the event of a dispute arising between the parties regarding performance or interpretation of this AGREEMENT, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), or similar organization or entity conducting alternate dispute resolution services. 20. ATTORNEY'S FEES, COSTS AND NECESSARY DISBURSEMENTS. If any action at law or inequity or if any proceeding in the form of an Alternative Dispute Resolution (ADR) 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. 21. WARRANTY. CONSULTANT shall perform its services in accordance with generally accepted industry and professional standards. If, within the 12-month period following completion of its services, the SANITATION DISTRICT informs CONSULTANT that any part of the services fails to meet those standards, CONSULTANT shall, within the time prescribed by the SANITATION DISTRICT, take all such actions as are necessary to correct or complete the noted deficiency(ies). PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 13 of 16 22. INDEMNIFICATION. To the fullest extent permitted bylaw, CONSULTANT shall indemnify, defend (at CONSULTANT'S sole cost and expense and with legal counsel approved by the SANITATION DISTRICT, which approval shall not be unreasonably withheld), protect and hold harmless the SANITATION DISTRICT and all of SANITATION DISTRICT'S officers, directors, employees, CONSULTANT's, and agents (collectively the"Indemnified Parties"), from and against any and all claims, damages, liabilities, causes of action, suits, arbitration awards, losses,judgments, fines, penalties, costs and expenses (including, without limitation, attorneys'fees, disbursements and court costs, and all other professional, expert or CONSULTANT'S fees and costs and the SANITATION DISTRICT'S general and administrative expenses; individually, a "Claim"; collectively, "Claims")which may arise from, pertain to, or relate to any work performed, or any operations, activities, or services provided by CONSULTANT in carrying out its obligations under this AGREEMENT to the extent of the negligent, recklessness and/or willful misconduct of CONSULTANT, its principals, officers, agents, employees, CONSULTANT'S suppliers, CONSULTANT, subconsultants, subcontractors, and/or anyone employed directly or indirectly by any of them, regardless of any contributing negligence or strict liability of an Indemnified Party. Notwithstanding the foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the Indemnified Parties from any Claim arising solely from: (A)the active negligence or willful misconduct of the Indemnified Parties; or (B)a natural disaster or other act of God, such as an earthquake; or (C)the independent action of a third party who is neither one of the Indemnified Parties nor the CONSULTANT, nor its principal, officer, agent, employee, nor CONSULTANT'S supplier, CONSULTANT, subconsultant, subcontractor, nor anyone employed directly or indirectly by any of them. Exceptions (A)through (B) above shall not apply, and CONSULTANT shall, to the fullest extent permitted by law, indemnify the Indemnified Parties, from Claims arising from more than one cause if any such cause taken alone would otherwise result in the obligation to indemnify hereunder. CONSULTANT'S liability for indemnification hereunder is in addition to any liability CONSULTANT may have to the SANITATION DISTRICT for a breach by CONSULTANT of any of the provisions of this AGREEMENT. Under no circumstances shall the insurance requirements and limits set forth in this AGREEMENT be construed to limit CONSULTANT'S indemnification obligation or other liability hereunder. The terms of this AGREEMENT are contractual and the result of negotiation between the parties hereto. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654)that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this AGREEMENT. 23. DUTY TO DEFEND. The duly to defend hereunder is wholly independent of and separate from the duty to indemnify and such duty to defend shall exist regardless of any ultimate liability of CONSULTANT and shall be consistent with Civil Code section 2782.8. Such defense obligation shall arise immediately upon presentation of a Claim by any person if, without regard to the merit of the Claim, such Claim could potentially PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 14 of 16 result in an obligation to indemnify one or more Indemnified Parties, and upon written notice of such Claim being provided to CONSULTANT. Payment to CONSULTANT by any Indemnified Party or the payment or advance of defense costs by any Indemnified Party shall not be a condition precedent to enforcing such Indemnified Party's rights to indemnification hereunder. In the event a final judgment, arbitration, award, order, settlement, or other final resolution expressly determines that the claim did not arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT, to any extent, then the DISTRICT will reimburse CONSULTANT for the reasonable costs of defending the Indemnified Parties against such claims. CONSULTANT'S indemnification obligation hereunder shall survive the expiration or earlier termination of this AGREEMENT until such time as action against the Indemnified Parties for such matter indemnified hereunder is fully and finally barred by the applicable statute of limitations. 24. ENTIRE AGREEMENT. This AGREEMENT constitutes the entire understanding and AGREEMENT between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. PSA PROJECT NO.SP-145-1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 15 of 16 IN WITNESS WHEREOF, this Agreement has been executed in the name of the SANITATION DISTRICT, by its officers thereunto duly authorized, and CONSULTANT as of the day and year first above written. / ORANGE COUNTY SANITATION DISTRICT M rc Dubois (Approved as to Form) Date ontracts, Purchasing and Materials Management Division Manager By Chair, Board of Directors Date By Clerk of the Board Date ARCADIS U.S., INC. By Date By Date ORANGE COUNTY SANITATION DISTRICT By Marc Dubois Date Contracts, Purchasing and Materials Management Division Manager Attachments: Attachment"A"—Scope of Work Attachment"B"—Labor Hour Matrix Attachment"D"—Allowable Direct Costs Attachment"G"—Cost Matrix SLS:yp EDMS:003965289 PSA PROJECT NO.SP-145.1 PHASE 2 FACILITY WIDE SAFETY ASSESSMENT Page 16 of 16 Return to Agenda OPERATIONS COMMITTEE MeedngDate To ad.of Di, 11,07,12 -- AGENDA REPORT Item Number Item Number 6 Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Nick Arhontes, P.E., Director of Facilities Support Services Engineering Manager: Mark Esquer, P.E., FSSD SUBJECT: SERVICE AREA 11 WINTERSBURG CHANNEL SIPHON VENT REPLACEMENT, PROJECT NO. FR11-017 GENERAL MANAGER'S RECOMMENDATION A. Authorize the General Manager to competitively bid and subsequently award a contract to the lowest responsive and responsible bidder, for the SA-11 Wintersburg Channel Siphon Vent Replacement Project No. FR11-017, for an amount not to exceed $170,000; and B. Approve a contingency of$34,000 (20%). SUMMARY The work will take place on the north side of the Warner Avenue Bridge where a siphon vent for the Knott Interceptor Sewer is routed above ground. It runs along and under the roadway's bridge as it crosses the Wintersburg Channel between Springdale Street and Graham Street in the City of Huntington Beach. The work covered under this contract will replace 120 feet of the above ground portion of a siphon vent line (air jumper) and repair concrete damage on a bridge pile cap extension that supports the vent line. The new section of 16-inch fiberglass reinforced plastic vent line includes expansion joints and new anchors that will accommodate thermal expansion and contraction. The repairs are necessary because the siphon vent line cracked, allowing corrosive condensation water to leak and damaged the bridge pile cap extension. The condensation water that builds up inside the vent line contains sulfuric acid that can be very corrosive to concrete. The contractor will use a special under-bridge access work platform to perform the repairs without having to enter the Wintersburg Channel which is an environmentally sensitive area and has restricted access. The contractor will also provide temporary support bracing for an existing 18-inch diameter steel waterline owned by the City of Huntington Beach that runs along the bridge adjacent to the siphon vent line. Any needed permits have been coordinated with the City of Huntington Beach. Coordination with the County of Orange for this maintenance has been initiated. It is very important to complete the repairs to the siphon vent line and pile cap extension prior to the County of Orange's East Garden Grove Wintersburg Channel Page 1 of 3 Improvements. This work by the County is expected to begin in the first part of December 2012 and will be under construction for approximately 14 months. OCSD's project schedule is estimated at 45 calendar days after the "notice to proceed" has been issued. At this time, it is expected to be completed by January 15, 2013. The Orange County Sanitation District advertised for bids per plans and specs on October 16, 2012. Electronic bids will be received on November 13, 2012. The bids will be evaluated in accordance with the OCSD's policies and procedures and awarded to the lowest responsive and responsible bidder. PRIOR COMMITTEE/BOARD ACTIONS None ADDITIONAL INFORMATION The Warner Avenue Bridge and the OCSD's Wintersberg Channel Siphon Vent were originally built in 1967. OCSD owns two siphons where Warner Avenue crosses the Wintersburg Flood Control Channel. One siphon is on the north side of the bridge and one is on the south side of the bridge. Each siphon has a vent line that is routed above ground on the outer edges of the bridge. Only the north siphon needs repair. The Orange County Flood Control District operates and maintains the Wintersburg Flood Control Channel (OCFCD Facility No. C05) under an easement right. The underlying fee owner is the State of California, State Lands Commission. (The engineer's current cost estimate for the project is $170,000. Payment to the contractors will be based on the actual bid amount and any approved change orders if needed.) Inverted siphons are facilities commonly used in a gravity sewer system to convey wastewater under existing facilities in its path. These existing facilities can be owned and operated by others and include rivers, flood control channels, storm drain pipes, or pressure pipelines. A gravity sewer line is designed to not flow full at design capacity and foul air circulates above the water surface in the pipe as the water moves downstream. Since the inverted siphon is full of wastewater, no air movement can take place which cause the foul air to back up to the nearest upstream manhole. This can cause odor complaints as the air is forced out. A means to provide for proper air conveyance is to install vent pipes connecting the upstream manhole to the downstream manhole. We call these vent pipes "air jumpers." CEQA N/A BUDGET/DELEGATION OF AUTHORITY COMPLIANCE Page 2 of 3 This request complies with authority levels of the Sanitation District's Delegation of Authority. This repair will be funded through the Small Capital Replacement/Rehabilitation Project - SP-34 (Budget Update Fiscal Year 2012-2013 and 2013-2014 Misc. & Support Projects; Section 8 — Page 111). This Small Capital fund is used to pay for capital repairs and/or direct replacements. The SP-34 budget is adequate to cover this project. Date of Approval Contract Amount Contingency 11/07/12 $170,000 $34,000(20%) ATTACHMENTS None SS:am:dm:gc Page 3 of 3 Return to Agenda OPERATIONS COMMITTEE Mewing Dare TOBd.O(Dlr. 11/07/12 11R8/12 AGENDA REPORT Itern Number Item Number 7 Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Assistant General Manager Project Manager: Jim Colston, Environmental Compliance Manager SUBJECT: Orange County Waste and Recycling Waste Disposal Agreement GENERAL MANAGER'S RECOMMENDATION Approve a Waste Disposal Agreement with the County of Orange (Orange County Waste and Recycling) for the County to receive and dispose of the Orange County Sanitation District's biosolids at the Prima Deshecha Landfill, subject to available capacity, for the period commencing on December 1, 2012 through June 30, 2020, with a renewal option of 10-years in a total annual amount not to exceed $3,605,288. SUMMARY The Orange County Sanitation District's (OCSD) biosolids management policy (Resolution OCSD 06-10) seeks to maintain a long-term sustainable biosolids program. To carry out this policy, OCSD continues to implement a diverse program of multiple biosolids contractors, markets, and facilities while maintaining fail-safe back-up capacity and developing in-county facilities and markets. For this reason, OCSD has been collaborating with the County of Orange, Orange County Waste and Recycling (County), to provide an in-county option to manage OCSD's biosolids. This option will reduce hauling mileage and cost for OCSD. The County offers to receive and dispose of OCSD's biosolids at their Prima Deshecha Landfill (Prima), subject to available capacity, at a tipping fee of $39.51 per ton of biosolids. This contract rate is subject to Consumer Price Index and other adjustments by the County. The term of the Waste Disposal Agreement (WDA) is for a period of seven years (December 1, 2012 to June 30, 2020), with one renewal option for 10-years. With a hauling fee of $6 per ton (Yule Ranch Biosolids Contract, effective January 1, 2013), the total cost for disposal at Prima is $45.51 per ton during the first year, which will be OCSD's lowest cost biosolids management option. PRIOR COMMITTEE/BOARD ACTIONS November 2011: Approval of the 2011 Strategic Plan. Page 1 of 6 ADDITIONAL INFORMATION The Prima Deshecha Sanitary Landfill (Prima) is located in the City of San Juan Capistrano. The landfill was opened in 1976 and is scheduled to close in 2067. Designated as a Class III landfill, Prima is permitted to accept a maximum of 4,000 tons per day (TPD) of construction, demolition, mixed municipal and industrial waste, including a maximum of 350 TPD of biosolids/wastewater sludge. The biosolids must be co-disposed with refuse at a minimum ratio of five-to-one (5/1) municipal waste to biosolids. In addition, the site is permitted to receive a maximum traffic volume of 1797 vehicles per day. Presently, Prima is the only landfill in Orange County that is permitted to accept biosolids, which is not used as an Alternative Daily Cover. The biosolids are mixed with other solid waste material and covered with soil. The South Orange County Wastewater Authority (SOCWA) is currently the only agency in Orange County that is sending biosolids to Prima. Their contract is limited to 85 TPD of biosolids. Prima is receiving an average of 1,000 to 1,100 tons of refuse per day. In applying biosolids ratio, this means that Prima can accept a total of 200-220 TPD of biosolids. Thus, the remaining available tonnage, subtracting SOCWA's reserved capacity of 85 TPD, is approximately 115-135 TPD. Under OCSD's current policy, OCSD may send a maximum of 100 TPD of the biosolids, which is within Prima's landfill capacity. General Provision of the Waste Disposal Agreement: Permitted Biosolids Disposals: Subject to available capacity (0-135 Wet Tons Per Day or more). If OCSD uses a landfill for biosolids management, OCSD must use Prima first, up to the amount that the County is able to receive (excluding emergencies). OCSD has no minimum requirement to use the landfill. Contract Rate: ( Base Tipping Fee (with Current CPI): $31.37 ( 10% (Increase for post 2010 agencies entering into Waste Disposal Agreement) ( $5 (Special Service Fee-Fixed cost) ( Total Tipping Fee: $39.51 per ton ( Contract rate is subject to Consumer Price Index adjustments. Contract Term: From December 1, 2012 to June 30, 2020 — Option to renew for an additional 10 Years. Page 2 of 6 Estimated Annual Net Savings with OC Landfill Option Online: Current Cost Distribution without EnerTech % Tons Per Cost per ton Total annual cost Vendor Location Allocated Da wlfuelper site S na ro South Kern 35% 260 $ 74.50 $ 7,070,050 S na ro AZ Soils 19% 140 $ 63.50 $ 3,244,850 Tule Ranch Yuma- Famt 47% 350 $ 56.00 $ 7,154,000 100% 750 Total Cost: $17,468,900 Proposed Cost Distribution with OC Landfill % Tons per Cost per ton Total annual cost Vendor Location Allocated day wlfuelper site S na ro South Kern 33% 250 $ 74.50 $ 6,798,125 S na ro AZ Soils 10% 75 $ 63.50 $ 1,738,313 Tule Ranch Yuma- Farm 43% 325 $ 56.00 $ 6,643,000 OC Landfill Tule Ranch Prima 13% 100 $ 45.51' $ 1,661,115 100% 1 750 1 Total Cost: 1 $16,840,553 Annual Net Savings with OC Landfill I $628,348 1. $39.51 Tipping Fee plus$6 Hauling C sVlruckload(25 tons)-Hauling cost effective 1lil13 Potential Risks: During the course of negotiations with the County, OCSD identified potential risks associated with the proposed indemnification language of the WDA. Currently, there are 32 cities, three sanitary districts, and one Joint Powers Authority with existing WDAs with the County. The proposed indemnification language in the WDA with OCSD is identical to the other existing WDAs. The County has taken the position that it cannot alter or modify the original language in a manner that is more favorable than the original WDAs per the standard agreement. Despite negotiations, the County remains resolute not to modify the indemnification language. The proposed indemnification language is narrow in scope, only providing indemnity for claims arising out of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Even with such indemnification, in the event the County exhausts all of its resources to defend such a claim or to remediate environmental conditions that arise out of CERCLA, OCSD may end up paying a portion of such cost by way of the County increasing the contract rate to offset the costs. As presented, other than CERCLA claims, OCSD will not be fully protected from other claims, including tort or nuisance abatement actions, arising from the County's management and operations of Prima. Page 3 of 6 The County has been operating Prima since 1976, and the County has been receiving and disposing of biosolids into the landfill without any of the above issues occuring. Similar to OCSD, the County is stringently regulated by local, state, and federal agencies and is required to comply with regulations to protect public health and the environment. CEQA OCSD, as lead agency, prepared a Program Environmental Impact Report (PIER) entitled "Orange County Sanitation District 1999 Strategic Plan Program Environmental Impact Report," State Clearinghouse No. 97101065 (the 1999 PEIR). The Board certified the 1999 PEIR on October 27, 1999, and OCSD filed a Notice of Determination on October 29, 1999. The 1999 Strategic Plan analyzed the wastewater collection, treatment, and disposal facilities needed to accommodate the projected growth in OCSD service area through the year 2020, and recommended expansion of OCSD's facilities. The 1999 Strategic Plan projected an increase in OCSD biosolids production from the 199611997 baseline level of 180,000 wet tons per year (WTPY), and 7,200 annual haul truck trips, to 421,000 WTPY and 16,840 annual haul truck trips. The 1999 PEIR analyzed the environmental effects of the 1999 Strategic Plan. The 1999 PEIR assumed that an additional 38 haul truck trips per day would be required to accommodate the projected increase in biosolids production (from the baseline of 27 truck trips per day to 65 truck trips per day in 2020). The 1999 PEIR assumed that less than one truck trip per day would travel from OCSD's facilities to the Landfill. The County, as lead agency, prepared a Program Environmental Impact Report entitled "2001 Prima Deshecha General Development Plan Program Environmental Impact Report," State Clearinghouse No. 99041035 (the 2001 PEIR). The County certified the PEIR on November 6, 2001 and filed a Notice of Determination on November 6, 2001. The 2001 PEIR evaluated the environmental impacts associated with long-term development and implementation of the Prima site, including the continued use of the site for landfill purposes. The 2001 PEIR analyzed the environmental impacts associated with an increase in waste disposal at Prima from 2,500 tons per day (TPD) in 2001 to 4,000 TPD in 2014 (and thereafter until 2067). The 2001 PEIR assumed that 350 TPD of the anticipated 4,000 TPD disposed at Prima would be biosolids. The activities contemplated in the WDA are subsequent activities within the scope of the 1999 PEIR and the 2001 PEIR. OCSD's total biosolids production is currently 20-30 truck trips per day, which is within the scope of biosolids production analyzed in the 1999 PEIR of up to 65 truck trips per day. The WDA does not call for an expansion of OCSD's biosolids production. It is contemplated that under the WDA, OCSD will dispose 100 TPD of biosolids at Prima, or 4 truck trips per day. The South Orange County Wastewater Authority (SOCWA) is currently disposing 25 TPD of biosolids at Prima, or 1 truck trip per day. The combination of the existing disposal by SOCWA at Prima (25 TPD) and OCSD's projected disposal at Prima under the WDA (100 TPD), or 125 TPD, is within the 350 TPD analyzed by the 2001 PEIR. Although the WDA calls for a small increase in the daily truck trips analyzed in the 1999 PEIR from OCSD to Prima, from less than 1 truck trip per day to up to 4 truck trips per day, this increase is Page 4 of 6 de minimis. In fact, the truck trips to Prima may actually reduce impacts created by existing conditions. The truck trips to Prima anticipated in the WDA will take the place of currently existing trips to the EnerTech Facility in San Bernardino County. The truck trips to the EnerTech facility are approximately 60 miles each way. The truck trips to Prima are approximately 28 miles each way. The truck trips to Prima will accordingly result in a substantial reduction in the total vehicle miles traveled. OCSD has determined, therefore, that the WDA is within the scope of the 1999 PEIR and the 2001 PEIR and that no additional documentation is required. (Public Resources Code § 21166; CEQA Guidelines §§ 15168, 15162). Even if the WDA was not within the scope of these prior PEIRs, the activities contemplated within the WDA are exempt from CEQA pursuant to: (1) CEQA's Class 1 Exemption (CEQA Guidelines § 15301); and (2) CEQA's "Common Sense" Exemption (CEQA Guidelines § 15061(b)(3)). The Class 1 exemption applies to the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private facilities involving negligible or no expansion of a use beyond the use existing at the time of the lead agency's CEQA determination. (Cal. Code Regs., Tit. 14, § 15301.) Under existing conditions, Prima is receiving 1 truck trip per day of biosolids for disposal from SOCWA. Under the WDA, Prima will receive a total of 5 truck trips per day of biosolids for disposal, including 1 truck trip per day from SOCWA and 4 truck trips per day from OCSD. This is an increase of 4 truck trips per day. OCSD's rate of operation and biosolids production will not change under the WDA. As a result, the WDA calls for the operation of existing public facilities involving a negligible expansion of the uses existing at the time that OCSD's Board considers the WDA and makes its CEQA determination. The Agreement is therefore exempt from CEQA review pursuant to CEQA Guidelines Section 15301. CEQA'S "Common Sense" Exemption applies where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3)). In order to determine whether a project will have a significant environmental effect, a lead agency must first define the baseline environmental conditions. The "project" for CEQA purposes consists of changes in the baseline conditions, if any, that the lead agency's action will cause. The baseline usually consists of the physical conditions that exist when the lead agency commences CEQA review (CEQA Guidelines § 15125(a)). As explained above, the WDA calls for an increase in biosolids disposal at Prima from 1 truck trip per day to 5 truck trips per day, or a total increase of 4 truck trips per day. This is a De Minimis increase in existing conditions. OCSD's rate of operation and biosolids production will not change under the WDA. And, the truck trips to Prima will take the place of existing trips to the EnerTech facility in San Bernardino County, which will result in a substantial reduction in the total vehicle miles traveled by OCSD trucks. It can be seen with certainty, therefore, that there is no possibility that the WDA may have a significant effect on the environment and the WDA is exempt from CEQA review pursuant to CEQA Guidelines Section 15061(b)(3). Page 5 of 6 BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This request complies with authority levels of the Sanitation District's Delegation of Authority. This item has been budgeted. (Line item: Section 5, Page 6). Project contingency funds will not be used for this Agreement. Date of Auoroval Contract Amount Contingency 11/28/12 $3,605,288 N/A ATTACHMENT The following attachment(s)may be viewed on-line at the OCSD website (i w .ocsd.com) with the complete agenda package and attachments: ( Waste Disposal Agreement (23 pages) JC:sa:gc Page 6 of 6 WASTE DISPOSAL AGREEMENT Between THE COUNTY OF ORANGE,CALIFORNIA and the ORANGE COUNTY SANITATION DISTRICT Dated_2012 County Authorization Date: District Authorization Date: County Notice Address: District Notice Address: Director OC Waste&Recycling 300 N.Flower Street,Suite 400 Santa Ana,CA 92703 Ewe uti.Copy TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.1 DEFINITIONS..................................................................................................................................2 Section 1.2 INTERPRETATION.........................................................................................................................6 ARTICLE II REPRESENTATIONS AND WARRANTIES Section 2.1 REPRESENTATIONS AND WARRANTIES OF THE DISTRICT...............................................7 Section 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY.................................................8 ARTICLE Ill DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE Section 3.1 DELIVERY OF WASTE..._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.._.................8 Section 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY_.................................._....... .........9 Section 3.3 COUNTY RIGHT TO REFUSE WASTE...... ...................................... ...10 Section 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE...............................................................11 Section 3.5 MISCELLANEOUS OPERATIONAL MATTERS....... ........................................................... Section 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. ................................................................. ........11 Section 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES...................................................12 ARTICLE IV DISTRICT CONTRACT RATE Section 4.1 CHARGING AND SECURING PAYMENT OF DISTRICT CONTRACT PATE......................12 Section 4.2 CONTRACT RATE........................................................................................................................12 Section 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE...........................................13 Section 4.4 BILLING OF THE CONTRACT PATE........................................................................................13 Section 4.5 [RESERVED].................................................................................................................................13 Section 4.6 AUDITED FINANCIAL STATEMENTS......................................................................................13 Section 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION.............................................13 ARTICLE V BREACH,ENFORCEMENT AND TERMINATION Section5.1 BREACH........................................................................................................................................14 Section 5.2 DISTRICT CONVENIENCE TERMINATION.............................................................................14 Section 5.3 TERMINATION.............................................................................................................................14 Section 5.4 NO WAIVERS................................................................................................................................15 Section 5.5 FORUM FOR DISPUTE RESOLUTION......................................................................................15 Executive Copy ARTICLE VI TERM Section 6.1 EFFECTIVE DATE AND TERM..................................................................................................15 Section 6.2 [RESERVED].................................................................................................................................16 ARTICLE VII GENERAL PROVISIONS Section 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM.......................................16 Section 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY........................................................16 Section 7.3 INDEMNIFICATION.....................................................................................................................17 Section 7.4 RELATIONSHIP OF THE PARTIES............................................................................................17 Section 7.5 LIMITED RECOURSE..................................................................................................................17 Section 7.6 PRE-EXISTING RIGHTS AND LIABILITIES.............................................................................17 Section 7.7 NO VESTED RIGHTS...................................................................................................................18 Section 7.8 LIABILITY FOR COLLECTION,TRANSPORTATION AND PROCESSING..........................18 Section 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES......................... ...........................18 Section 7.10 AMENDMENTS.... .._.._.._.._.._............................................................... ...............................18 Section 7.11 NOTICE OF LITIGATION............................................................................................................18 Section 7.12 FURTHER ASSURANCES.... .._....... .._.._.._......................................................................_.._...18 Section 7.13 ASSIGNMENT OF AGREEMENT... ...........................................................................18 Section 7.14 INTEREST ON OVERDUE OBLIGATIONS...............................................................................18 Section 7.15 BINDING EFFECT........................................................................................................................18 Section7.16 NOTICES........................................................................................................................................18 Executive Copy WASTE DISPOSAL AGREEMENT THIS WASTE DISPOSAL AGREEMENT is made and dated as of the date indicated on the cover page hereof between the County of Orange, a political subdivision of the State of California (the "County"), and the Orange County Sanitation District,a county sanitation district duly existing under the laws of the State of California (the"District"). RECITALS The County owns,manages and operates a sanitary landfill system for the disposal of municipal solid waste generated by the cities and the unincorporated area within the County (the "Disposal System"). The Disposal System includes three active landfills and four regional household hazardous waste collection centers. The Disposal System is used for the disposal of municipal solid waste which is not reused, recycled or otherwise diverted from landfill disposal, pursuant to the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code) (the"Act"). The District operates a wastewater treatment processing facility, which generates Acceptable Waste (defined below)consisting of sewage sludge on a daily basis. In July 2009, the County entered into waste disposal agreements (the "Original Waste Disposal Agreements")with all of the cities in the County,as well as certain other government entities and private solid waste facility operators (the "Original Waste Disposal Agreement Entities"), pursuant to which the County agreed to provide disposal capacity for waste generated in or under the control of the Original Waste Disposal Agreement Entities, and the Original Waste Disposal Agreement Entities agreed to deliver or cause the delivery of waste generated in or under the control of the Original Waste Disposal Agreement Entities to the Disposal System,as more specifically set forth in,and subject to the tens and conditions of,the Original Waste Disposal Agreements. The Original Waste Disposal Agreements provide that the County may enter into additional waste disposal agreements with any Sanitary District, Transfer Station and Independent Hauler, or otherwise accept Acceptable Waste from such parties,but only within the limitations contained in the Original Waste Disposal Agreements. The District has determined that the execution of this Agreement by the District is in the best interest of the District and will serve the public health, safety and welfare by providing greater disposal rate stability, more predictable and reliable long-ten disposal service,and sound environmental management. The County has determined that the execution by the County of this Agreement will serve the public health, safety and welfare by providing a more stable, predictable and reliable supply of municipal solid waste and the resulting service payment revenue to the Disposal System,thereby enabling the County to plan,manage,operate and finance improvements to the Disposal System on a more prudent and sound long term,businesslike basis consistent with its obligations to the State and the holders of obligations secured by its Disposal System. Official action approving this Agreement and determining it to be in the public interest and authorizing its execution and delivery was duly taken by the County on the County authorization date indicated on the cover page hereof. Official action approving this Agreement and determining it to be in the best interest of the District, pursuant to Health and Safety Code Section 4742.1, and in the public interest and authorizing its execution and delivery was duly taken by the District on the District authorization date indicated on the cover page hereof. It is,therefore,agreed as follows: Executim Copy ARTICLE DEFINITIONS AND INTERPRETATION SECTION 1.1 DEFINITIONS. As used in this Agreement,the following terms shall have the meanings set forth below. "Acceptable Waste" means all garbage, refuse, rubbish and other materials and substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection and which are normally disposed of by or collected from residential (single family and multi-family), commercial, industrial, governmental and institutional establishments and which are acceptable at Class III landfills under Applicable Law. "Act" means the California Integrated Waste Management Act of 1989 (Division 30 of the California Public Resources Code),as amended,supplemented,superseded and replaced from time to time. "Agreement"means this Waste Disposal Agreement between the County and the District as the same may be amended or modified from time to time in accordance herewith. "Applicable Law" means the Act, the Orange County Code, CERCLA, RCRA, CEQA, any Legal Entitlement and any federal or state nile,regulation,requirement,guideline,permit,action,determination or order of any Governmental Body having jurisdiction, applicable from time to time to the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession, operation or maintenance of the Disposal System, the transfer,handling, transportation and disposal of Acceptable Waste, Unacceptable Waste, or any other transaction or matter contemplated hereby (including any of the foregoing which concern health, safety, fire, environmental protection,mitigation monitoring plans and building codes). "Board"means the California Integrated Waste Management Board. "CEQA"means the California Environmental Quality Act, codified at Cal. Pub. Res. Code Section 21000 et seq.as amended or superseded,and the regulations promulgated thereunder. "CERCLA" means the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A.Section 9601 ern seq.,as amended or superseded,and the regulations promulgated thereunder. "Change in Law"means any of the following events or conditions which has a material and adverse effect on the performance by the parties of their respective obligations under this Agreement (except for payment obligations), or on the siting, design, permitting, acquisition, construction, equipping, financing, ownership, possession,operation or maintenance of the Disposal System or other matters to which Applicable Law applies: (1) the enactment,adoption,promulgation,issuance, material modification or written change in administrative or judicial interpretation on or after the Original Waste Disposal Agreement Commencement Date of any Applicable Law(other than Applicable Law enacted by the County); (2) the order or judgment of any Governmental Body(other than the County),on or after the Original Waste Disposal Agreement Commencement Date,to the extent such order or judgment is not the result of willful or negligent action, error or omission or lack of reasonable diligence of the County or of the District, whichever is asserting the occurrence of a Change in Law; provided, however,that the contesting in good faith or the failure in good faith to contest any such order or judgment shall not constitute or be construed as such a willful or negligent action,error or omission or lack of reasonable diligence;or (3) the denial of an application for, delay in the review, issuance or renewal of, or suspension, termination, interruption, imposition of a new or more stringent condition in connection with the issuance, renewal or failure of issuance or renewal on or after the Original Waste Disposal Agreement Commencement Date of any Legal Entitlement to the extent that such denial, delay, suspension, termination, interruption,imposition or failure materially and adversely interferes with the performance of this Agreement,if and 2 Executive Copy to the extent that such denial, delay, suspension, termination, interruption, imposition or failure is not the result of willful or negligent action, error or omission or a lack of reasonable diligence of the County or of the District, whichever is asserting the occurrence of a Change in law;provided,however that the contesting in good faith or the failure in good faith to contest any such denial, delay, suspension, termination, interruption, imposition or failure shall not be construed as such a willful or negligent action,error or omission or lack of reasonable diligence. A"Change in Law"shall include but not be limited to any new or revised requirements relating to the funding or provision of disposal services, including but not limited to any regulations for disposal operations or activities associated with the remediation, closure, funding or monitoring of closed sites with respect to facilities comprising the Disposal System, or facilities which the County previously utilized to provide waste disposal, transfer,recycling,processing or other waste related activities. "Contract Date"means the first date on which this Agreement has been executed by both parties hereto. "Contract Rate" means the Contract Rate payable by the Original Waste Disposal Agreement Entities in accordance with the Original Waste Disposal Agreements,as such Contract Rate may be adjusted from time to time pursuant to the Original Waste Disposal Agreements. "Contract Year" means the fiscal year commencing on July 1 in any year and ending on June 30 of the following year. "County"means the County of Orange, a political subdivision of the State of California and party to this Agreement. "County Plan"means the integrated waste management plan of the County approved by the Board pursuant to the Act as in effect from time to time. "County OC Waste & Recycling Enterprise Fund" means the waste management enterprise fund established and managed by the County pursuant to Section 25261 of the Government Code separate from its other funds and accounts for receipts and disbursements in connection with the Disposal System. "County-wide Recycling Services"has the meaning set forth in subsection 3.7(A)hereof. "Department" means OC Waste & Recycling, and any agency, department or other Governmental Body which succeeds to the duties and powers thereof. "Disposal Services" means the solid waste disposal services to be provided by the County pursuant to the Service Covenant and otherwise hereunder. "Disposal System" means the Orange County Waste Disposal System which includes solid waste disposal operations at three active landfills (Olinda Alpha, Frank R. Bowerman and Prima Deshecha); four regional Household Hazardous Waste Collection Centers; as well as services, such as monitoring and other activities, at closed refuse stations formerly operated by the County,as appropriate under Applicable Law. "District"means the Orange County Sanitation District. "District Acceptable Waste" means all Acceptable Waste constituting sewage sludge generated at the Facility. "District Acceptable Waste" does not include: (i) any sewage sludge which is diverted from landfill disposal through source reduction, recycling, or composting activities; (ii) any sewage sludge temporarily required for research or demonstration purposes; (iii)any other type of Acceptable Waste generated at the Facility,including Acceptable Waste generated from the District's administrative operations or other activities; or (iv) Acceptable Waste generated from screening and grit removal,digester cleaning,or similar means. "District Contract Rate" means the District Contract Rate payable by the District pursuant to Section 4.2 hereof. 3 2xecutiw Copy "Facility"means the District's wastewater treatment facility located at "Governmental Body"means any federal, State, county, city or regional legislative, executive,judicial or other governmental board,agency,authority,commission,administration,court or other body,or any officer thereof acting within the scope of his or her authority. "Hazardous Substance" has the meaning given such term in CERCLA, the Carpenter-Presley-Tanner Hazardous Substance Account Act(California Health and Safety Code Section 25300 et seq.),and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder. "Hazardous Waste" means (a)any waste which by reason of its quality, concentration, composition or physical,chemical or infectious characteristics may do either of the following: cause,or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or pose a substantial threat or potential hazard to human health or the environment,or any waste which is defined or regulated as a hazardous waste,toxic substance,hazardous chemical substance or mixture,or asbestos under Applicable Law, as amended from time to time including, but not limited m: (I)the Resource Conservation and Recovery Act and the regulations contained in 40 CPR Parts 260-281; (2)the Toxic Substances Control Act(15 U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766; (3)the California Health and Safety Code, Section 25117 (West 1992 & Supp. 1996); (4)the California Public Resources Code, Section 40141 (West 1996); and(5)future additional or substitute Applicable Law pertaining to the identification,treatment,storage or disposal of toxic substances or hazardous wastes;or(b)radioactive materials which are source,special nuclear or by-product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.) and the regulations contained in 10 CFR Part 40. "Imported Acceptable Waste" means Acceptable Waste that is generated outside of the geographical boundaries of the County and delivered to the Disposal System. "Independent Haulers" means those waste collection/hauler companies primarily engaged as a principal business in the collection and transportation of municipal solid waste generated in the County of Orange which are not obligated to deliver Acceptable Waste generated in the County to the Disposal System pursuant to a franchise, contract,permit or other authorization with a city in the County. `Initial Term"has the meaning specified in Section 6.1(A)hereof. "Legal Entitlement" means all permits, licenses, approvals, authorizations, consents and entitlements of whatever kind and however described which are required under Applicable Law to be obtained or maintained by any person with respect to the Disposal System or the performance of any obligation under this Agreement or the matters covered hereby. "Legal Proceeding" means every action, suit, litigation, arbitration, administrative proceeding, and other legal or equitable proceeding having a bearing upon this Agreement. "Loss-and-Expense" means any and all loss, liability, obligation, damage, delay, penalty, judgment, deposit,cost,expense,claim,demand,charge,tax,or expense,including all fees and costs. "Original Waste Disposal Agreement Commencement Date" means July 23, 2009, which is the date on which the Commencement Date occurred in accordance with the terms of the Original Waste Disposal Agreement. "Original Waste Disposal Agreement Entities" means the Cities and franchise haulers which entered into the Original Waste Disposal Agreements. "Original Waste Disposal Agreements" means the Waste Disposal Agreements entered into between the County and each of the Original Waste Disposal Agreement Entities on or before the Commencement Date. A copy of an Original Waste Disposal Agreement is attached hereto as Appendix A. 4 Execution Copy "Overdue Rate"means the maximum rate of interest permitted by the laws of the State, if applicable,or the prime rate established from time to time by the Bank of America, N.A. or its successors and assigns, plus 2%, whichever is lower. "Posted Disposal Rate"means the per ton tipping fee charged by the County for the disposal of solid waste at the Disposal System by parties which are not entitled to disposal service at the Contract Rate pursuant to this Agreement. "Prohibited Medical Waste" means any medical or infectious waste prohibited or restricted under Applicable Law from being received by or disposed at the Disposal System. "Qualified Household Hazardous Waste"means waste materials determined by the Board,the Department of Health Services,the State Water Resources Control Board,or the Air Resources Board to be: (1) Of a nature that they must be listed as hazardous in State statutes and regulations; (2) Toxic/ignitable/corrosive/reactive;and (3) Carcinogenic/mumgenic/teratogenic; which are discarded from households as opposed to businesses. Qualified Household Hazardous Waste shall not include Unacceptable Waste. "Renewal Term"has the meaning specified in Subsection 6.1(B)hereof. "Resource Conservation and Recovery Act" or"RCRA" means the Resource Conservation and Recovery Act,42 U.S.C.A.Section 6901 et seq.,as amended and superseded. "Sanitary Districts"means the sanitary districts in the County formed pursuant to the Sanitary District Act of 1923, codified at Cal. Ann. Health & Safety Code Section 6400 et seq., as amended, supplemented, superseded and replaced from time to time. "Service Coordinator" means the service coordinator for either party designated pursuant to subsection 3.5(C)hereof. "Service Covenant" means the covenants and agreements of the County set forth in Sections 3.2 and 3.3 hereof. "State"means the State of California. "Term"shall mean the Term of this Agreement. "Ton"means a"short ton"of 2,000 pounds. "Transfer Station" means any materials recovery facility, composting facility, intermediate processing facility, recycling center, transfer station or other waste handling or management facility to which solid waste collected for the City is delivered for processing before disposal in the Disposal System. "Unacceptable Waste" means Hazardous Waste; Hazardous Substances; Prohibited Medical Waste; Qualified Household Hazardous Waste separated from Acceptable Waste; explosives, ordnance, highly flammable substances, and noxious materials and lead-acid batteries (except if delivered in minimal quantities); drams and closed containers; liquid waste, oil, human wastes (other than human waste present in amounts typically present in sewage sludge generated from the Facility); machinery and equipment from commercial or industrial sources, such as hardened gears, shafts, motor vehicles or major components thereof, agricultural equipment, trailers, marine 5 Execution Copy vessels and steel cable; hot loads; and any waste which the Disposal System is prohibited from receiving under Applicable Law. "Uncontrollable Circumstance" means any act, event or condition affecting the Disposal System, the County,the District,or any of their contractors or suppliers to the extent that it materially and adversely affects the ability of either party to perform any obligation under the Agreement(except for payment obligations), if such act, event or condition is beyond the reasonable control of and is not also the result of the willful or negligent act,error or omission or failure to exercise reasonable diligence on the part of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under the Agreement; provided, however, that the contesting in good Faith or the failure in good faith to contest such action or inaction shall not be construed as willful or negligent action or a lack of reasonable diligence of either party. Examples of Uncontrollable Circumstances are: (1) an act of God, landslide,lightning,earthquake, fire, explosion,flood,sabotage or similar occurrence,acts of a public enemy,extortion,war,blockade or insurrection,riot or civil disturbance;and (2) a Change in Law. "Unincorporated Area" means those portions of the County which are not contained within the jurisdictional boundaries of incorporated cities. "Unincorporated Area Acceptable Waste" means Acceptable Waste originating from or generated within the Unincorporated Area. "Waste Disposal Covenant" means the covenants and agreements of the District set forth in Section 3.1 hereof. SECTION 1.2 INTERPRETATION. In this Agreement,unless the context otherwise requires: (A) References Hereto. The terms"hereby","hereof',"herein","hereunder"and any similar terms refer to this Agreement, and the term "hereafter" means after, and the term "heretofore" means before, the Contract Date. (B) Gender and Plmalitv. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. (C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies,as well as individuals. (D) Hea�din . The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Agreement shall be solely for convenience of reference and shall not constitute a part of this Agreement,nor shall they affect its meaning,construction or effect. (E) No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on haulers or any other person other than the parties hereto and their respective permitted successors and assigns hereunder any rights or remedies under or by reason of this Agreement. (F) Counteparts. This Agreement may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Agreement. (G) Applicable Law. This Agreement shall be governed by and construed in accordance with the Applicable Laws of the Stara of California. 6 Executim Copy (H) SeverabiliN. If any clause, provision, subsection, Section or Article of this Agreement shall be ruled invalid by any court of jurisdiction,then the parties shall: (1)promptly meet and negotiate a substitute for such clause, provision, subsection, Section or Article which shall, to the greatest extent legally permissible, effect the intent of the parties therein; (2)if necessary or desirable to accomplish item (1)above,apply to the court having declared such invalidity for a judicial construction of the invalidated portion of this Agreement; and (3)negotiate such changes in, substitutions for or additions to the remaining provisions of this Agreement as may be necessary in addition to and in conjunction with items (1) and (2) above to effect the intent of the parties in the invalid provision. The invalidity of such clause,provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Agreement shall be construed and enforced as if such invalid portion did not exist,unless such invalidity frustrates the underlying primary purpose of the Agreement. (I) Inteeration; Preservation of Certain Agreements. This Agreement contains the entve agreement between the parties with respect to the transactions contemplated hereby. This Agreement shall completely and fully supersede all prior understandings and agreements between the Parties with respect to such transactions;provided,however,that this Agreement shall not supersede the following agreements: 1) MOU, dated March 10, 1992, between the City of Brea and the County of Orange regarding the Olinda Alpha Landfill as amended on April 6, 1993 and November 29, 1994; 2) MOU, dated May 11, 1995,between the City of Brea and the County of Orange regarding importation of out-of-County waste to the Olinda Alpha Landfill; 3) Settlement Agreement,dated August 1, 1984,between the City of Irvine and the County of Orange regarding the Bee Canyon Landfill(currently called Prank R.Bowerman Landfill); 4) MOU, dated May 16, 1995, between the City of Irvine and the County of Orange regarding importation of out-of-County waste to the Frank R.Bowerman Landfill; 5) MOU, dated September 12, 1995, and amended November 21, 1995, between the City of San Juan Capistrano and the County of Orange regarding importation of out-of-County waste to the Prima Deshecha Landfill; 6) MOU, dated July 1, 1997, between the City of San Clemente[, the Orange County Flood Control District]and the County of Orange regarding the Prima Deshecha Landfill;and 7) Cooperative Agreement, dated August 15, 2006, between the County and the City of Irvine. (J) Recitals. The recitals to this Agreement me not intended to bind the parties hereto. In the event of a conflict between the recitals and the operative provisions of this Agreement,the operative provisions shall prevail. The recitals shall not be used to interpret the provisions of the Agreement. ARTICLE II REPRESENTATIONS AND WARRANTIES SECTION 2.1 REPRESENTATIONS AND WARRANTIES OF THE DISTRICT. The District represents and warrants that: (A) Existence. The District is a county sanitation district validly existing under the Constitution and laws of the State. (B) Due Authorization. The District has duly authorized the execution and delivery of this Agreement,and this Agreement has been duly executed and delivered by the District. 7 Executive Copy SECTION 2.2 REPRESENTATIONS AND WARRANTIES OF THE COUNTY. The County represents and warrants that: (A) Existence. The County is a political subdivision of the State of California validly existing under the Constitution and laws of the State. (B) Due Authorization. The County has duly authorized the execution and delivery of this Agreement,and this Agreement has been duly executed and delivered by the County. ARTICLE III DELIVERY AND ACCEPTANCE OF WASTE AND PROVISION OF DISPOSAL SERVICE SECTION 3.1 DELIVERY OF WASTE. (A) Waste Disposal Covenant During the Term of this Agreement,the District shall deliver or cause the delivery of all District Acceptable Waste, if any, to the Disposal System, subject to availability of acceptance in the Disposal System,in accordance herewith. (B) Waste Flow Enforcement. The District acknowledges and agrees that in the event the District breaches the Waste Disposal Covenant by disposing of District Acceptable Waste at a landfill outside the Disposal System (other than District Acceptable Waste which the County does not accept at the Disposal System pursuant to Section 3.3.), the District shall pay the County an amount equal to the amount that the District would have been required to pay to the County had the Waste Disposal Covenant not been breached, which shall be calculated by multiplying (x) the number of tons of District Acceptable Waste disposed at landfills outside of the Disposal System (other than District Acceptable Waste which the County does not accept at the Disposal System pursuant to Section 3.3.),times(y)the District Contract Rate in effect at the time of such breach(or any higher rate with respect to which the County has provided notice pursuant to Section 4.2). In the event that the County terminates the Waste Disposal Agreement as a result of such breach,the damages due as a result of such termination shall be equal to ma) the average monthly deliveries by the District for the twelve months prior to the commencement of the breach multiplied by(bb)the Contract Rate in effect at the time of such breach(or any higher rate with respect to which the County has provided notice pursuant to Section 4.2),multiplied by(cc)the number of months that would have remained in the Term of the Agreement had the termination not occurred. The parties recognize that if the District fails to meet its obligations hereunder,the County will suffer damages and that it is and will be impracticable and extremely difficult to ascertain and determine the exact amount of such damages. Therefore,the parties agree that the damages specified above represent a reasonable estimate of the amount of such damages, considering all of the circumstances existing on the date hereto, including the relationship of the sums to the range of harm to the County that reasonably could be anticipated and anticipation that proof of actual damages would be costly or inconvenient. In signing this Agreement, each party spccifically confirms the accuracy of the statements made above and the fact that each parry had ample opportmity to consult with legal counsel and obtain an explanation of this liquidated damage provision at the time that this Agreement was made. (C) Waste Information System. The District shall cooperate with the Department in collecting information and otherwise monitoring haulers of District Acceptable Waste in order to assure compliance with this Agreement. Such information may include,to the extent practicable,data pertaining to District Acceptable Waste collected,transported,stored,processed and marketed or disposed of, such collection terms, collection areas, transportation routes and compliance with Applicable Law; and all other information which may reasonably be required by the Department in connection with this Agreement. The District agrees to include in any revised contract,license or permit or other arrangement with haulers of District Acceptable Waste to provide to the County information relating to the District Acceptable Waste transported by such hauler, as well as other sewage sludge generated from the Facility transported by such hauler which was diverted from landfill disposal and therefore did not constitute District Acceptable Waste hereunder, including the location of any facility or location to which such sewage sludge was delivered,and other related information. (D) District Actions Affecting County. The District agrees to carry out and fulfill its responsibilities under this Agreement and Applicable Law so as to permit full and timely compliance by the County 8 Executive Copy with its covenants and agreements with the State. In particular, the District agrees not to conduct, authorize or permit any disposal services for District Acceptable Waste to be provided in competition with the Disposal Services provided by the County hereunder, and not to take or omit m take any action with respect to District Acceptable Waste or its collection, transportation, transfer, storage, treatment or disposal that may materially and adversely affect the County's ability to achieve such timely compliance. (E) No Right of Waste Substitution. Nothing in this Agreement shall authorize or entitle the District to deliver or cause the delivery to the Disposal System of Acceptable Waste originating from or generated outside the jurisdiction of the District,not obligate the County to receive or dispose of any such Acceptable Waste. The District shall not assign in whole or in part its right to deliver or cause to be delivered District Acceptable Waste to the County hereunder, and shall not permit any Acceptable Waste originating from or generated outside the jurisdiction of the District to be substituted for District Acceptable Waste for any purpose hereunder. The County acknowledges that the provision of wastewater treatment services at the Facility by the District with respect to wastewater generated outside of the County will not violate this section. SECTION 3.2 PROVISION OF DISPOSAL SERVICES BY THE COUNTY. (A) Service Covenant. Commencing on 2012,the County shall provide or cause the provision of the service of(1)receiving and disposing of all District Acceptable Waste at the Disposal System (or such other facilities, including transfer stations, as the County may determine to use), (2)disposing in accordance with subsection 3.2(C)hereof of District Acceptable Waste which, at any time and for any reason,is in excess of the disposal capacity of the Disposal System, and (3) in accordance with subsection 3.3(C) hereof, disposing of Unacceptable Waste inadvertently accepted at the Disposal System. The County, to the maximum extent permitted under Applicable Law, shall use its best efforts to keep the Olinda Alpha, Prima Deshecha and Frank R. Bowerman Landfills open for the receipt of waste for disposal or transfer of District Acceptable Waste pursuant to this Agreement. The County shall do and perform all acts and things which may be necessary or desirable in connection with its covenants in this subsection,including without limitation all planning,development, administration, implementation, construction, operation, maintenance, management, financing and contract work related thereto or undertaken in connection therewith. The County shall exercise all reasonable efforts to minimize the costs incurred in complying with the Service Covenant consistent with its responsibilities hereunder and under this Agreement,Applicable Law and prudent solid waste management practice and environmental considerations. (B) Particular Facilities. The Department and the District shall consult and cooperate in determining whether and to what extent from time to time other landfills other than that primarily used by the District shall be utilized to receive District Acceptable Waste. The District acknowledges that,due to the fact that District Acceptable Waste constitutes sewage sludge, (i) the acceptance at the Disposal System of District Acceptable Waste may be limited or prohibited by the Legal Entitlements during periods when Acceptable Waste otherwise generated in the County is not subject to such prohibition or limitation; and (ii) the Department may be required to direct District Acceptable Waste to particular facilities within the Disposal System during periods when Acceptable Waste is not generally subject to such requirements.As of the Contract Date,the only landfill within the Disposal System at which District Acceptable Waste may currently be accepted is the Prima Deshecha Landfill. The Department shall immediately advise the District by telephone of any situation, event or circumstance which results in the partial or complete inability of the County to receive District Acceptable Waste at Prima Deshecha Landfill,its effect on the County's ability to perform its obligations hereunder,and the County's best estimate of the probable duration The Department shall confirm such advice in writing within 24 hours of the occurrence of any such inability. The County shall use its best efforts to resume normal operation of the landfill primarily used by the District as soon as possible. In the event of a temporary material increase in average daily deliveries of District Acceptable Waste from the District which the County reasonably believes could result in the permitted daily disposal capacity limit to be exceeded with respect to a particular landfill within the Disposal System, to the extent permitted by Legal Entitlements, the County shall have the right to redirect the increased District Acceptable Waste to another landfill within the Disposal System for the duration of the increase in average daily deliveries. (C) Particular Restrictions Relating to the Receipt of District Acceptable Waste. The District acknowledges that the Legal Entitlements relating to the Prima Deshecha Landfill contain particular limitations relating to sewage sludge not generally applicable to Acceptable Waste, including a limit on the maximum amount of sewage sludge that may be accepted equal to the lesser of(x) 350 tons per day or (z) 16.6% of the total 9 Executim Copy Acceptable Waste accepted per day. The District also acknowledges that Changes in Law may have additional specific requirements or prohibitions relating to sewage sludge (and therefore District Acceptable Waste). The County shall be excused from its obligation to accept District Acceptable Waste pursuant to the Service Covenant in the event that the County is prohibited from doing so pursuant to any Legal Entitlements relating to the Disposal System.In the event that a Change in Law precludes or further limits the County from accepting District Acceptable Waste at the Disposal System,the County shall use all efforts to effectuate executive, legislative or judicial change in or relief from the applicability of such law so as to enable the County lawfully to resume compliance with such covenants as soon as possible following the Change in Law. SECTION 3.3 COUNTY RIGHT TO REFUSE WASTE. (A) Right of Refusal. Notwithstanding any other provision hereof, the County may refuse delivery of. (1) Hazardous Waste; (2) District Acceptable Waste delivered at hams other than those provided in Section 3.5 hereof, (3) Waste that does not constitute District Acceptable Waste; (4) Waste that is delivered by any party which has not executed a Waste Disposal Agreement; (5) District Acceptable Waste the acceptance of which would cause the County to violate any Legal Entitlements; (6) District Acceptable Waste the acceptance of which would materially and adversely affect the ability of the County to receive and dispose of Acceptable Waste from(i)the parties identified in the MOU,dated July 1, 1997,between the City of San Clemente,the Orange County Flood Control District and the County of Orange, including successor entities, regarding the Prima Deshecha Landfill, or (it) the Original Waste Disposal Agreement Entities in accordance with the Original Waste Disposal Agreements. (B) Identification of Unacceptable Waste. The Department shall have the right (but not the duty or the obligation)to inspect any vehicles delivering District Acceptable Waste to the Disposal System,and may require that the operator of the vehicle remove any Unacceptable Waste from such vehicle before it is unloaded. If the Department determines that it is impractical to separate District Acceptable Waste from Unacceptable Waste in any vehicle, or if the operator of the vehicle delivering such waste is unwilling to make such separation, or if any vehicle is carrying waste which may spill or leak,then the Department may reject the entire vehicle,and the District shall forthwith remove or cause the removal of the entire delivery from the Disposal System. The Department may take all reasonable measures to prevent waste from being blown or scattered before and during unloading. The District shall cause the operators of any vehicles delivering District Acceptable Waste to observe and comply with Applicable Law, the operating rules and regulations of the Department, and the provisions of this Agreement prohibiting the delivery of Unacceptable Waste to the Disposal System. (C) Hazardous Waste and Hazardous Substances. The parties acknowledge that the Disposal System has not been designed or permitted, and is not intended to be used in any manner or to any extent, for the handling,transportation,storage or disposal of Hazardous Waste or Hazardous Substances. Neither the County nor the District shall countenance or knowingly permit the delivery of Hazardous Waste or Hazardous Substances to the Disposal System. (D) Disposal of Unacceptable Waste and Hazardous Waste. If Unacceptable Waste or Hazardous Waste is discovered in a vehicle at any landfill within the Disposal System, the driver of the vehicle will not be permitted to discharge the load. If a vehicle is observed unloading Unacceptable Waste or Hazardous Waste in the tipping area of a landfill within the Disposal System, Department personnel will use reasonable efforts to 10 Executive Copy assure that such material has been characterized, properly secured, and its disposition resolved. The return or reloading onto the delivery vehicle of any Hazardous Waste, Prohibited Medical Waste or other waste requiring handling or transportation shall be conducted in accordance with Applicable Law. Whenever Hazardous Waste is detected at any landfill within the Disposal System, the Department shall take immediate action in accordance with Applicable Law. SECTION 3.4 UNINCORPORATED AREA ACCEPTABLE WASTE. Commencing on the Contract Date, the County in accordance with Applicable Law shall provide or cause to be provided the service of disposing of non-recycled Acceptable Waste originating or generated within the Unincorporated Area and, with respect to such waste, shall comply with the Waste Disposal Covenant as if the County constituted a City subject to the Waste Disposal Covenant hereunder. Rates charged by the County for the disposal of each class of non-recycled Acceptable Waste generated in the Unincorporated Area shall be the same as the Contract Fee charged for the disposal of each class of District Acceptable Waste. The County shall use its best efforts to preserve, protect and defand its right to exercise and comply with the Waste Disposal Covenant(with respect to non-recycled Acceptable Waste generated in the Unincorporated Area)against any challenge thereto,legal or otherwise,by a franchise hauler or any other person,based upon breach of contract,violation of law or any other legal theory. The County shall bear the cost and expense of any such Legal Proceeding or other challenge (with respect to non-recycled Acceptable Waste generated in the Unincorporated Area). SECTION 3.5 MISCELLANEOUS OPERATIONAL MATTERS. (A) Operating Hours. The County shall keep the Disposal System open for the receiving of District Acceptable Waste during such regular operating hours as may be established by the Department in the operating ndes and regulations applicable to the Disposal System. The County shall utilize best efforts to maintain substantially similar hours, as were in effect on the Contract Date, for the receipt of waste through the term of this Agreement(subject to Applicable Law). (B) Scales and Weiehine. The Department shall operate and maintain permanent scales at the Disposal System. The Department shall weigh all vehicles delivering waste by or on behalf of the District (whether or not the County accepts such waste)and prepare a daily weight record with regard to such delivery. (C) Service Coordinator. The County and the District each shall designate in writing on or prior to the Contract Date a person to transmit instructions, receive information, and otherwise coordinate service matters arising pursuant to this Agreement(each a"Service Coordinator"). Either party may designate a successor or substitute Service Coordinator at any time by notice to the other party. (D) Review of Records. Each party may review the other parry's books and records with respect to matters relevant to the performance by either party under this Agreement or otherwise related to the operation of the Disposal System to the extent allowed under the California Public Records Act(interpreted as if the parties to this Agreement were natural persons for purposes of the Public Records Act). SECTION 3.6 OTHER USERS OF THE DISPOSAL SYSTEM. (A) [RESERVED] (B) Other County Entities. The County shall have the right to enter into waste disposal agreements with other Orange County entities in accordance with the Original Waste Disposal Agreements. (C) Receipt of Imported Acceptable Waste on a Contract Basis. The County shall have the right to enter into a contract or other agreement with any municipal or private non-County entity for the delivery of Imported Acceptable Waste in accordance with the Original Waste Disposal Agreements. (D) Self Haulers. The Department and the County acknowledge that Self-Haulers shall be entitled to deliver Self-Hauled Waste to the Disposal System, on a non-contract basis, at the Posted Disposal Rate. Such Self-Haulers shall not be entitled to dispose of Acceptable Waste for the Contract Rate. 11 Execution Copy (E) [RESERVED] SECTION 3.7 COUNTY PROVISION OF WASTE DIVERSION SERVICES. (A) County-Wide Recycling Services. This Agreement does not require the County to provide for any source reduction,materials recovery,recycling,composting,or other waste diversion services by the County nor any payment therefor by the District;provided,however,any County-Wide Recycling Services may be funded through the Comfy OC Waste&Recycling Enterprise Fund. Any such recycling services may be expanded, contracted or modified by the Comfy at any time in its sole discretion. (B) Separate District-Comte Diversion Service Agreements. Nothing in this Agreement is intended to limit the right of the Comfy to enter into a separate agreement with the District or any other person to provide source reduction, materials recovery, recycling, composting or other waste diversion services. Any such program conducted by the County, whether in participation with the District, any of the Original Waste Disposal Agreement Entities,other cities, Sanitary Districts,Transfer Stations,Independent Haulers,Unincorporated Area or non-County entity, shall be operated, managed and accounted for as a program separate and distinct from the Disposal Services program contemplated by the Disposal Agreements and shall not be funded through the general revenues of the Disposal System. ARTICLE N DISTRICT CONTRACT RATE SECTION 4.1 CHARGING AND SECURING PAYMENT OF DISTRICT CONTRACT RATE. The District acknowledges that the Comfy shall have the right to charge and collect a District Contract Rate for the acceptance and disposal of District Acceptable Waste delivered to the System by the District. The District Contract Rate shall be calculated and established, and may be modified, as provided in Section 4.2 hereof In addition, the District acknowledges that the Comfy shall have the right to establish as part of the operating rules and regulations reasonable measures to secure the payment of the District Contract Rate. SECTION 4.2 CONTRACT RATE. (A) Establishment of Contract Rate. The District Contract Rate payable by the District shall at all times be equal to I10% of the then-current Contract Rate (e.g. Contract Rate plus ten percent) payable by Original Waste Disposal Agreement Entities pursuant to the Original Waste Disposal Agreements,as such Contract Rate may be adjusted or escalated from time to time pursuant to the Original Waste Disposal Agreements. The County shall provide notice to the District of any adjustment to the Contract Rate under the Original Waste Disposal Agreements at the same time it provides notice thereof to the Original Waste Disposal Agreement Entities pursuant to the Original Waste Disposal Agreements. (B) [RESERVED] (C) [RESERVED] (D) [RESERVED] (E) Special Charges. Notwithstanding Section 4.2(A), the County shall have the right to impose special charges for the receipt of District Acceptable Waste in the event that Legal Entitlements or operating considerations require special handling of sewage sludge, or if any surcharge or additional fee is payable by the County with respect to District Acceptable Waste order any host community or similar agreement between the County and my city in the Comfy. Such special charges shall be calculated to reflect the reasonable incremental costs to the County of such special handling of sewage sludge.In addition,in the event that the Board of Supervisors of the County makes a determination to implement a facility (including but not limited to a transfer station, landfill, conversion technology facility, or a materials recovery or processing facility), which facility would be intended to provide for disposal alternatives after the closure of one or more of the landfills currently operating within the 12 Executive Copy Disposal System,the County may impose an additional charge of$0.50 per ton of Acceptable Waste in order to pay the costs of the study,development,planning,construction and/or operation of such facility. (F) rRESERVEDI (G) IRESERVEDI (H) [RESERVED] (I) [RESERVED] (J) [RESERVED] SECTION 4.3 RESPONSIBILITY FOR PAYMENT OF THE CONTRACT RATE. (A) Payment by the District. The District shall be responsible for the payment of the District Contract Rate,and shall take all such budgetary, appropriation and other action as may be necessary to provide for the timely payment of the District Contract Rate. Such action may include, depending upon the means authorized by the District to provide for such payment, the collection of user fees, generator charges or other similar impositions. From the Contract Date to the date of expiration or termination of this Agreement,the obligation to the District to pay the Contract Rate shall be absolute and unconditional and shall not be subject to delay or diminution by reason of set-off,abatement,counterclaim,existence of a dispute or otherwise. (13) rRESERVEDI (C) Disputes. If the District disputes any amount billed by the County in any Billing Statement, the District shall nonetheless pay the billed amount and shall provide the County with written objection within 30 days of the receipt of such Billing Statement indicating the amount that is being disputed and providing all reasons then known to the District for any objection to or disagreement with such amount. If the District and the County are not able to resolve such dispute within 30 days after the District's objection, either party may pursue appropriate legal remedies. SECTION 4.4 BILLING OF THE CONTRACT RATE. The County shall continue to bill District Contract Rates after the Commencement Date,in the same manner as it has customarily billed tipping fees. Subject to the other provisions of this Agreement,the County shall have the right to modify or amend such manner of billing on reasonable notice to affected parties. SECTION 4.5 [RESERVED] SECTION 4.6 AUDITED FINANCIAL STATEMENTS. The County shall annually, on or before January 1 each year, prepare or cause to be prepared and have on file for inspection an annual report for the preceding Contract Year,accompanied by a certificate of an independent public accountant or of the County Auditor and Controller as to the examination of the financial statements therein (describing such statements as fairly presenting the information therein in conformity with generally accepted accounting principles) relating to the Disposal System,the Disposal Services, and the fiscal activities of the County OC Waste Disposal Enterprise Fund, and including statements in reasonable detail of the financial condition of the County OC Waste Disposal Enterprise Fund m of the end of the Contract Year and revenue and expenses for the Contract Year. SECTION 4.7 ANNUAL UPDATE OF TEN-YEAR FINANCIAL PROJECTION. The County shall annually, on or before May 1 of each year, prepare or cause to be prepared, an updated Ten-Year Financial Projection for the Disposal System. Said Financial Projection shall include at least two full years of prior actual data and ten years of future projections including the following elements: 1. County Acceptable Waste,in tons; 13 Executive Copy 2. Imported Acceptable Waste,in tons; 3. Revenues and expenditures; 4. Cash fund balances, including all monies in the County Solid Waste Enterprise Fund; 5. Projected liabilities for closure and post closure as well as reasonable reserves for other environmental costs. The purpose of the Ten-Year Financial Projection is to keep the District fully informed about the future financial condition of the Disposal System. The County shall cause a copy of the Ten-Year Financial Projection to be delivered to the District no later than May 1 of each year. ARTICLE V BREACH,ENFORCEMENT AND TERMINATION SECTION 5.1 BREACH. The parties agree that in the event either parry breaches any obligation under this Agreement or any representation made by either parry hereunder is untrue in any material respect, the other party shall have the right to take any action at law or in equity(including actions for injunctive relief,mandamus and specific performance)it may have to enforce the payment of any amounts due or the performance of any obligations to be performed hereunder. Neither party shall have the right to terminate this Agreement except as provided in Section 5.2 and Section 5.3 hereof or as otherwise provided in this Agreement. SECTION 5.2 DISTRICT CONVENIENCE TERMINATION. The District shall have the right to terminate this Agreement in its sole discretion, for its convenience and without cause at any time during the Term hereof upon 90 days' written notice to the County. If the District exercises its rights to terminate the Agreement pursuant to this Section, the District shall pay the County a termination fee equal to the District Contract Rate in effect at the time of such termination (or any higher rate with respect to which the County has provided notice pursuant to Section 4.2) multiplied by the number of tons of District Acceptable Waste delivered to the Disposal System during the preceding twelve months (or, if the District had been in breach of the Waste Disposal Covenant during such prior months, such amount as would have been delivered if the District had complied with the Waste Disposal Covenant),multiplied by the number of years remaining in the Term of the Agreement. SECTION 5.3 TERMINATION. (A) By District. Except as expressly provided herein, the District shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the County substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the District the right to terminate this Agreement for cause under this subsection unless: (1) The District has given prior written notice to the County stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the part of the County and which will,in its opinion,give the District the right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time,and (2) The County has neither challenged in an appropriate forum(in accordance with Section 5.5) the District's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the County shall have diligently taken steps to correct such breach within such reasonable period of time,the same shall not constitute a breach giving rise to the right of termination for as long as the County is continuing to take such steps to correct such breach). 14 Execution Copy (B) By County. Except as expressly provided herein, the County shall have no right to terminate this Agreement for cause except in the event of the repeated failure or refusal by the District substantially to perform any material obligation under this Agreement unless such failure or refusal is excused by an Uncontrollable Circumstance; except that no such failure or refusal shall give the County the right to terminate this Agreement for cause under this subsection unless: (1) The County has given prior written notice to the District stating that a specified failure or refusal to perform exists which will, unless corrected, constitute a material breach of this Agreement on the pan of the District and which will, in its opinion, give the County right to terminate this Agreement for cause under this subsection unless such breach is corrected within a reasonable period of time,and (2) The District has neither challenged in an appropriate forum(in accordance with Section 5.5) the County's conclusion that such failure or refusal to perform has occurred or constitutes a material breach of this Agreement nor corrected or diligently taken steps to correct such breach within a reasonable period of time not more than 90 days from the date of the notice given pursuant to clause (1) of this subsection (but if the District shall have diligently taken steps to correct such breach within such reasonable period of time,the same shall not constitute a breach giving rise to the right of termination for as long as the District is continuing to take such steps to correct such breach). SECTION 5.4 NO WAIVERS. No action of the County or the District pursuant to this Agreement (including,but not limited to,any investigation or payment),and no failure to act,shall constitute a waiver by either party of the other parry's compliance with any term or prevision of this Agreement. No course of dealing or delay by the County or the District in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof or otherwise prejudice such party's rights,powers and remedies. No single or partial exercise of(or failure to exercise)any right,power or remedy of the County or the District under this Agreement shall preclude any other or further exercise thereof of the exercise of any other right,power or remedy. SECTION 5.5 FORUM FOR DISPUTE RESOLUTION. It is the express intention of the parties that all legal actions and proceedings related to this Agreement or to the Disposal System or to any rights or any relationship between the parties wising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California having appropriate jurisdiction. ARTICLE VI TERM SECTION 6.1 EFFECTIVE DATE AND TERM. (A) Initial Term. This Agreement shall become effective,shall be in full force and effect and shall be legally binding upon the District and the County from the Contract Date and shall continue in full force and effect until June 30, 2020, unless earlier terminated in accordance with its terms, in which event the Term shall be deemed to have expired as of the date of such termination. (B) Option to Renew. This Agreement shall be subject to renewal by mutual agreement of the parties,on or before June 30,2018, for an additional term of ten years(the`Renewal Term")on the same terms and conditions as are applicable during the Initial Term hereof. The District shall give the County written notice of its irrevocable election to renew this Agreement on or before June 30, 2017. If the parties do not renew this Agreement by Jane 30,2018,the Agreement shall expire on Jane 30,2020. (C) Contract Rate During Renewal Term. In connection with the parties' right to renew this Agreement for an additional ten-year term pursuant to Section 6.1(B), the parties shall, on or before Jane 30,2018, negotiate an applicable change in the District Contract Rate for such renewal term. In determining any revisions to the Contract Rate to be applicable during any renewal period, in addition to the circumstances described in Section 4.2(A),the parties may take into consideration the following parameters,including but not limited to: (1) actual cost of operations; 15 Executim Copy (ii) population growth; (iii) increase or decrease in available tonnage; (iv) economic and disposal market conditions in the Southern California region; (v) changes in transportation and technology; (vi) closure and expansion of nearby landfills; (vii) capacity of the Disposal System;and (viii) available reserves which are in excess of the amount reasonably required as reserves. (D) Survival, Accrued Rights. The rights and obligations of the parties hereto pursuant to Sections 5.1, 5.3, 5.5, 7.2, 7.3, 7.5, 7.7, 7.8, 7.9, and 7.10 hereof shall survive the termination or expiration of this Agreement,and no such termination or expiration shall limit or otherwise affect the respective rights and obligations of the parties hereto accrued prior to the date of such termination or expiration. At the end of the Term of this Agreement,all other obligations of the parties pursuant to this Agreement shall terminate. SECTION 6.2 [RESERVED] ARTICLE VII GENERAL PROVISIONS SECTION 7.1 OPERATION AND MAINTENANCE OF THE DISPOSAL SYSTEM. The County, at its cost and expense through the County Solid Waste Enterprise Fund, shall at all times operate, or cause to be operated, the Disposal System in accordance with Applicable Law and the operating rates and regulations of the Department. SECTION 7.2 UNCONTROLLABLE CIRCUMSTANCES GENERALLY. (A) Performance Excused. Except as otherwise specifically provided in this Agreement, neither the County nor the District shall be liable to the other for any failure or delay in the performance of any obligation under this Agreement(other than any payment at the time due and owing) to the extent such failure or delay is due to the occurrence of an Uncontrollable Circumstance. (B) Notice. Mitigation. The party experiencing an Uncontrollable Circumstance shall notify the other party by telecommunication or telephone and in writing, on or promptly after the date the party experiencing such Uncontrollable Circumstance first knew of the commencement thereof, followed within 15 days by a written description of(1)the Uncontrollable Circumstance and the cause thereof(to the extent known), (2)the date the Uncontrollable Circumstance began and the cause thereof, its estimated duration,the estimated time during which the performance of such parry's obligations hereunder will be delayed, (3)the estimated amount, if any, by which the District Contract Rate may need to be adjusted as a result of such Uncontrollable Circumstance, (4) its estimated impact on the other obligations of such party under this Agreement and (5)potential mitigating actions which might be taken by the County or District and any areas where costs might be reduced and the approximate amount of such cost reductions. Each parry shall provide prompt written notice of the cessation of such Uncontrollable Circumstance. Whenever such act,event or condition shall occur,the parry claiming to be adversely affected thereby shall,as promptly as reasonably possible,use its best efforts to eliminate the cause therefor,reduce costs and resume performance under this Agreement. In addition,with respect to Changes in Law,the County shall diligently contest any such changes the imposition of which would have a material adverse impact on the Disposal System. While the delay continues,the County or District shall give notice to the other party,before the first day of each succeeding month,updating the information previously submitted. 16 Execution Copy (C) Impact on Contract Rate. If and to the extent that Uncontrollable Circumstances interfere with,delay or increase the cost to the County of meeting its obligations hereunder and providing Disposal Services to the Participating Cities in accordance herewith,the County shall be entitled to an increase in the Contract Rate as provided in the Original Waste Disposal Agreements (and therefore an increase in the District Contract Rate hereunder)or an extension in the schedule for performance equal to the amount of the increased cost or the time lost as a result thereof The proceeds of any insurance available to meet any such increased cost shall be applied to such purpose prior to any determination of cost increases payable under this subsection. Any cost reductions achieved through the mitigating measures undertaken by the County pursuant to the Original Waste Disposal Agreements upon the occurrence of an Uncontrollable Circumstance shall be reflected in a reduction of the amount by which the Contract Rate would have otherwise been increased or shall serve to reduce the Contract Rate to reflect such mitigation measures,as applicable. SECTION 7.3 INDEMNIFICATION. To the extent permitted by law, the County agrees that, it will protect, indemnify, defend and hold harmless the District from and against all Loss-and-Expense arising from the District's activity as an"arranger"(for purposes of and as such term is defined under CERCLA or comparable state statutes)of municipal solid waste disposal pursuant to this Agreement. In the event the District shall determine that because of conflict or any other reason that it wishes to be defended by legal counsel other than the legal counsel provided by the County, the cost of providing such legal counsel shall be the District's sole responsibility. The District acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement whether the County or the District provides legal counsel. Any costs incurred by the County pursuant to this Section shall be considered an Uncontrollable Circumstance cost and the County shall be entitled to adjust the Contract Rate (and therefore the District Contract Rate) as provided in subsection 4.2(A)herein. The County shall not,however, be required to indemnify or defend the District from and against all Loss-and-Expense arising from any willful,knowing, illegal or negligent disposal of hazardous waste(other than incidental amounts of Household Hazardous Waste commonly found in municipal solid waste and permitted to be disposed in Class III landfills under RCRA) which violates the County's landfill permits or Applicable Law. The parties agree that this provision constitutes an indemnity under CERCLA (to the extent of the specific provisions of this Section). The parties acknowledge that this subsection is not intended to and does not create any obligation on the part of the County to provide any indemnification or defense to any hauler or other party which transports, receives, processes or otherwise handles District Acceptable Waste, whether franchised or not, or any Independent Hauler or Transfer Station which transports, receives, processes or otherwise handles District Acceptable Waste, under any circumstances. The District acknowledges the County's legitimate interest in actively participating in any defense, litigation or settlement,and shall,as a condition to this indemnity,coordinate fully with the County in the defense. SECTION 7.4 RELATIONSHIP OF THE PARTIES. Neither party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations or liabilities assumed by the other party hereto, whether accrued, absolute, contingent or otherwise, or whether due or to become due. The County is an independent contractor of the District and nothing in this Agreement shall be deemed to constitute either party a partner,agent or legal representative of the other parry or to create any fiduciary relationship between the parties. SECTION 7.5 LIMITED RECOURSE. No recourse shall be had to the general funds or general credit of the County for the payment of any amount due the District hereunder, or the performance of any obligation incurred hereunder, including any Loss-and-Expense of any nature arising from the performance or non- performance of the County's obligations hereunder. The sole recourse of the District for all such amounts shall be to the funds held in the County Solid Waste Enterprise Fund in accordance with the terms of this Agreement. All amounts held in the County Solid Waste Enterprise Fund shall be held for the uses permitted and required thereby, and no such amounts shall constitute property of the District. The County shall make adequate provision in the administration of the County Solid Waste Enterprise Fund for the payment of any amount or the performance of any obligation which may be due hereunder. SECTION 7.6 PRE-EXISTING RIGHTS AND LIABILITIES. Nothing in this Agreement is intended to affect,release,waive or modify any rights,obligations or liabilities which any party hereto may have to or against the other party as of the Contract Date relating to the disposal of waste in the Disposal System or any other related matter. 17 Executive Copy SECTION 7.7 NO VESTED RIGHTS. The District shall not acquire any vested property, license or other rights in the Disposal System by reason of this Agreement. SECTION 7.8 LIABILITY FOR COLLECTION, TRANSPORTATION AND PROCESSING. Any liability incurred by the District as a result of collecting Acceptable Waste or processing it for diversion from landfill, or as a result of causing, franchising, permitting, licensing, authorizing or arranging any of the foregoing, shall be its sole liability,except as expressly otherwise provided herein. SECTION 7.9 NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event shall either party hereto be liable to the other or obligated in any manner to pay to the other any special, incidental, consequential, punitive or similar damages based upon claims arising out of or in connection with the performance or non- performance of its obligations or otherwise under this Agreement, or the material inaccuracy of any representation made in this Agreement, whether such claims are based upon contract, tort, negligence, warranty or other legal theory. SECTION 7.10 AMENDMENTS. Neither this Agreement nor any provision hereof may be changed, modified,amended or waived except by written agreement duly authorized and executed by both parties. SECTION 7.11 NOTICE OF LITIGATION. Each party shall deliver written notice to the other of any Legal Proceeding to which it is a party and which questions the validity or enforceability of this Agreement executed by the District or the County or any Legal Entitlement issued in connection herewith. SECTION 7.12 FURTHER ASSURANCES. At any and all times the District and the County so far as may be authorized by law shall pass, make, do, execute, acknowledge and deliver any and every such further resolutions, acts, deeds, conveyances, instruments, assignments, transfers and assurances as may be necessary or reasonably requested by the other in order to give full effect to this Agreement. SECTION 7.13 ASSIGNMENT OF AGREEMENT. (A)Assignment.Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party hereto without the prior written consent of the other party,which may be withheld in the other party's sole discretion. Notwithstanding the foregoing, either party may assign this Agreement to another public entity, subject to the reasonable consent of the other party. In such circumstances the party not requesting the assignment shall have the right to demand assurances of the financial, technical and legal ability of the proposed assignee to undertake the responsibilities and obligations of the assigning party. (B)Sale.The County shall not enter into any agreement for the sale of the Disposal System which provides for an effective date for such sale prior to the termination of this Agreement. SECTION 7.14 INTEREST ON OVERDUE OBLIGATIONS. Except as otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue or reimbursements, that are not paid when due shall bear interest at the Overdue Rate on the meant outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed,and all such interest accrued at any time shall,to the extent permitted by Applicable Law,be deemed added to the amount due,as accrued. SECTION 7.15 BINDING EFFECT. This Agreement shall bind and inure to the benefit of the parties hereto and any successor or assignee acquiring an interest hereunder consistent with the provisions of Section 7.13 hereof. SECTION 7.16 NOTICES. Any notice or communication required or permitted hereunder shall be in writing and sufficiently given if delivered in person or sent by certified or registered mail, postage prepaid, to the notice address of the respective parties set forth on the cover page of this Agreement. Changes in the respective addresses to which such notices my be directed may be made from time to time by any party by notice to the other party. 18 Executive Copy IN WITNESS WHEREOF,COUNTY and DISTRICT have caused this Agreement to be executed by their duty authorized officers or representatives as of the day and year first above written. COUNTY OF ORANGE Date By Director,OC Waste&Recycling Date By [NAME] District Representative Orange County Sanitation District APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY,CALIFORNIA By Date 19 Execuum Copy APPENDIX A COPY OF ORIGINAL WASTE DISPOSAL AGREEMENT Executive Copy Return to Agenda OPERATIONS COMMITTEE Meeang Dare TOBd.Of Dlr. u/o7/tz tt/zs/u AGENDA REPORT Itern Number Item Number B Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Assistant General Manager Project Manager: Jim Colston, Environmental Compliance Manager SUBJECT: Synagro Contract Amendment GENERAL MANAGER'S RECOMMENDATION Authorize Amendment No. 9 to Synagro West, Inc., (Synagro) Purchase Order No. 100760-013, increasing the annual amount from $6,580,000 to an amount not to exceed (NTE) $8,600,000 for the period of January 1, 2012 through December 31, 2012 for the Orange County Sanitation District's biosolids management contract. Thereafter, the NTE will be $6,850,000. SUMMARY The recent termination of the EnerTech contract has resulted in significant savings to the Orange County Sanitation District's (Sanitation District) biosolids management costs. Biosolids formerly managed by EnerTech are being sent to our existing vendors, Synagro and Tula Ranch and will be sent to Orange County Waste and Recycling's Prima Deshecha Landfill commencing in January 1, 2013 (pending board approval). The proposed Amendment No. 9 to Synagro's contract is needed to accommodate the additional loads of approximately 100-125 tons per day with no changes to the unit price. PRIOR COMMITTEE/BOARD ACTIONS ( April 26, 2006 - Approved Amendment No. 8, amended cost of sludge removal and included a not to exceed limit of 6,580,000. ( April 28, 2004 - Approved Amendment No. 7, amended to include South Kem Industrial Center and a not to exceed limit of $5,800,000 and amended term of contract. ( May 22, 2002 - Approved Amendment No. 6, amended substituting Synagro West, Inc. for Pima Gro Systems, Inc, cost of sludge removal, term of contract, and required an Environmental Management System. ( August 25, 1999 - Approved Amendment No. 5, amended cost of sludge removal, terms of contract, and incorporated force majeure clause. Page 1 of 3 ( Nov 2, 1996 - Approved Amendment No. 4, amended agricultural use sites and cost of sludge removal. ( March 29, 1995 - Approved Amendment No. 3, amended agricultural use sites, term of contract, incremental weather conditions, and cost of sludge removal. ( May 8, 1991 - Approved Amendment No. 2, amended agricultural use sites, term of contract, early termination, and cost of sludge removal. ( October 10, 1990 - Approved Amendment No. 1, amended agricultural use sites and cost of sludge removal. ( May 11, 1988 -Authorized General Manager to enter into an agreement with Prima Gro Systems, Inc. (Currently known as Synagro West, Inc.)for removal and disposal/reuse of Districts' residual solids from Plants 1 and 2. ADDITIONAL INFORMATION There is no proposed change in the unit price per ton from the existing Synagro contract, and staff is not proposing to change the volume of tonnage sent to Synagro beyond that which has previously been discussed to manage the EnerTech tonnage; however, with the additional loads to Synagro, the NTE contract amount of $6,580,000 for 2012 calendar will be exceeded. To accommodate the increased loads for this calendar year, Synagro's NTE contract limits must be increased by $1,956,438, which totals to $8,600,000. Thereafter, the NTE will be $6,850,000, which is sufficient to cover the required contract minimum. The proposed Amendment is exempt from CEQA pursuant to: (1) CEQA's Class 1 Exemption (CEQA Guidelines § 15301); and (2) CEQA's "Common Sense" Exemption (CEQA Guidelines § 15061(b)(3)). CEQA's Class 1 exemption applies to the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private facilities involving negligible or no expansion of a use beyond the use existing at the time of the lead agency's CEQA determination (CEQA Guidelines § 15301). Here, the Amendment calls for a continuation of the status quo: the Sanitation District's facilities will continue to operate at their current rate; Synagro will continue to use the same streets and freeways to haul the same quantity of biosolids for processing from the Sanitation District to Synagro's operations in Kern County, California, and La Paz, Arizona, respectively, that it currently hauls biosolids for processing to its operations in Kern County, California, and La Paz, Arizona, respectively. As a result, the Amendment calls for the operation of existing public and private facilities involving negligible or no expansion of the use existing at the time that the Amendment will be considered by the Sanitation District's Board, and when the Sanitation District makes its CEQA determination. The Amendment is therefore exempt from CEQA review pursuant to CEQA Guidelines Section 15301. Page 2 of 3 CEQA's "Common Sense" Exemption applies where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3)). In order to determine whether a project will have a significant environmental effect, a lead agency must first define the baseline environmental conditions. The "project" for CEQA purposes consists of changes in the baseline conditions, if any, that the lead agency's action will cause. It follows that a lead agency is not required to identify impacts that are considered part of the baseline conditions. The baseline usually consists of the physical conditions that exist when the lead agency commences CEQA review (CEQA Guidelines § 15125(a)). As explained above, the Amendment calls for a continuation of the status quo. The activities contemplated under the Amendment are already part of the environmental baseline conditions. As a result, it can be seen with certainty that there is no possibility that the Amendment may have a significant effect on the environment, and the Amendment is exempt from CEQA review pursuant to CEQA Guidelines Section 15061(b)(3). BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This request complies with authority levels of the Sanitation District's Delegation of Authority. This item has been budgeted. (Line item: Section 5, Page 6). Project contingency funds will not be used for this Amendment. Date ofApproval ContractAmount Contin enc 04/26/06 $6,580,000 NIA 11/28/12 $8,600,000 NIA ATTACHMENT The following attachment(s)maybe viewed on-line at the OCSD website (www.ocsd.com) with the complete agenda package and attachments: ( Amendment No. 9 JC:jb:gc Page 3 of 3 AMENDMENT NO. 9 TO AGREEMENT FOR THE AGRICULTURAL USE OF SEWAGE SOLIDS THIS AMENDMENT NO. 9 TO AGREEMENT,is made and entered into this_day of ,2012,and to be effective the_day of ,2012,by and between the Orange County Sanitation District("DISTRICT'),and SYNAGRO WEST,INC.,formerly known as,Pima Gro Systems, Inc.,of Redlands,CA("CONTRACTOR"). WITHNESSETH: WHEREAS,DISTRICT and CONTRACTOR previously executed an Agreement dated June 1, 1988, for professional services entitled"AGREEMENT FOR THE AGRICULTURAL USE OF SEWAGE SOLIDS" ("ORIGINAL AGREEMENT")for removal and disposal/reuse of DISTRICT's Residual Solids(biosolids);and, WHEREAS,DISTRICT and CONTRACTOR amended such ORIGINAL AGREEMENT by Amendment No. 1 dated October 10, 1990,Amendment No. 2 dated June 1, 1991,Amendment No. 3 dated April 1, 1995,Amendment No.4 dated December 2, 1996,Amendment No. 5 dated September 1, 1999, letter entitled"Modification of the Synagro West, Inc. Agreement for the Management of Biosolids" dated September 23,2005 ("Letter Modification"),Amendment No. 6 dated July 1,2002, Amendment No. 7 dated July 1,2004, and Amendment No. 8 dated July 1,2006(the ORIGINAL AGREEMENT,Amendment No. 1,Amendment No. 2,Amendment No. 3,Amendment No.4, Amendment No. 5, Letter Modification,Amendment No. 6,Amendment No. 7,and Amendment No. 8 shall be collectively referenced herein as the"AGREEMENT');and, WHEREAS,DISTRICT has determined that management of biosolids is necessary; and, WHEREAS,CONTRACTOR is qualified to provide the necessary services in connection with these additional requirements based on its demonstrated competence and has agreed to provide the necessary services,and has been selected in accordance with the DISTRICT's selection policy regarding professional services and conformance with the DISTRICT's Environmental Management System for Biosolids(EMS); and, WHEREAS,DISTRICT,has negotiated with CONTRACTOR and has determined the final negotiated fee for said service as reasonable; and, WHEREAS,the Board of Directors has accepted the recommendation of staff,and has approved this Amendment No. 9 between DISTRICT and CONTRACTOR. NOW,THEREFORE, in consideration of the promises and mutual benefits which will result to the parties in carrying out the terms of this Amendment No. 9,it is mutually agreed as follows: 1. The annual compensation allowed under the AGREEMENT pursuant to Paragraph 2 of Amendment No. 8,which amended Paragraph 2 of Amendment No. 7,amending Paragraph 1 of Page I of 3 896380.1 Amendment No. 6, and amending Paragraph 1 of Amendment No. 5 shall be replaced with an annual compensation allowed under this AGREEMENT not to exceed$8,600,000 for the period of January 1,2012 through December 31,2012;thereafter,this AGREEMENT shall not to exceed$6,850,000. 2. This Amendment No. 9 does not modify or change the Term of the AGREEMENT as set forth in Paragraph 7 of Amendment No. 7 and reaffirmed in Paragraph 7 of Amendment No. 8. 3. This Amendment No. 9 is supplemental to the ORIGINAL AGREEMENT date June 1, 1988,as modified by Amendments Nos. 1 through 8 and the Letter Modification,and is by reference made a part of said AGREEMENT. All of the terms,conditions and provisions thereof shall continue in full force and effect unless specifically addressed by this Amendment. 4. In the event of any conflict or inconsistency between the provisions of this Amendment No. 9 and any of the provisions of the ORIGINAL AGREEMENT,Amendment Nos. 1 through 8,or the Letter Modification,the provisions of this Amendment No. 9 shall in all respects govern and control. 5. The persons executing this Amendment No. 9 on behalf of the Parties hereto warrant that(i) such party is duly organized and existing, (ii)they are duly authorized to execute and deliver this Amendment No. 9 on behalf of said Party,(iii)by so executing this Amendment No. 9,such parry is formally bound to the provisions of this Amendment No. 9, and(iv)the entering into this Amendment No. 9 does not violate any provisions of any other agreement to which said Parry is bound. [SIGNATURES ON NEXT PAGE] Page 2 of 3 896380.1 IN WITNESS WHEREOF,this Amendment No. 9 to the AGREEMENT has been executed in the name of the DISTRICT by its duly authorized officers and by CONTRACTOR,as of the day and year first above written. ORANGE COUNTY SANITATION DISTRICT By Troy Edgar Chairman, Board of Directors By Maria Ayala Secretary,Board of Directors CONTRACTOR By NAME President By NAME Assistant Secretary APPROVED AS TO FORM: By Bradley R.Hogin DISTRICT,General Counsel Page 3 of 3 896380.1 Return to Agenda OPERATIONS COMMITTEE Meeting Date TOBd.of Dir. 11/DJ/12 11/28/12 AGENDA REPORT Item Item Number 9 Orange County Sanitation District FROM: James D. Ruth, General Manager Originator: Jim Herberg, Assistant General Manager CIP Project Manager: Umesh Murthy SUBJECT: SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1, PROJECT NO. P1-101 GENERAL MANAGER'S RECOMMENDATION A. Approve Plans and Specifications for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, on file at the office of the Clerk of the Board; B. Approve Addendum Nos. 1 through 6 to the plans and specifications; C. Receive and file bid tabulation and recommendation; D. Receive and file Award Protest dated October 5, 2012 and Supplemental Award Protests dated October 12, 2012 and October 30, 2012 from Balfour Beatty Infrastructure, Inc. concerning the award to W. M. Lyles Company; E. Receive and file response letter dated October 11, 2012, from W.M. Lyles Company to Award Protest from Balfour Beatty Infrastructure, Inc.; F. Receive and file Orange County Sanitation District Final Disposition letters dated October 15, 2012 and October 31, 2012 to Balfour Beatty Infrastructure, Inc. responding to the Award Protest; G. Deny Award Protest filed by Balfour Beatty Infrastructure, Inc.; H. Receive and File Award Protest from Moyno, Inc. dated August 23, 2012, alleging that the sole source designation of Seepex for cake pumps was improper; I. Receive and file Orange County Sanitation District Final Disposition letter dated October 4, 2012 to Moyno, Inc., responding to Award Protest; J. Reject untimely Award Protest filed by Moyno, Inc.; K. Approve a budget increase of $24,708,300 for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101 for a total amount not to exceed $171,978,300; Page 1 of 8 L. Award a construction contract to W.M. Lyles Company for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, for a total amount not to exceed $126,908,300; and, M. Approve a contingency of$3,800,000 (3%). SUMMARY Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101 (Project), replaces existing solids and dewatering odor control systems and installs sludge thickening systems at the Orange County Sanitation District (Sanitation District) Plant No. 1. The Sanitation District needs this project for the following reasons: 1. Additional capacity to thicken and dewater sludge due to conversion of Plant No. 1 to full secondary treatment and increased flows to support expansion of the Ground Water Replinishment System (GWRS). 2. Existing sludge dewatering facilities that was built in the late 1970s and early 1980s has to be replaced because equipment is in poor condition and is reaching the end of its useful life. 3. Increase biosolids cake dryness to reduce biosolids management costs. 4. Improve sludge thickening to optimize use of existing digesters and eliminate construction of new digesters. 5. Manage site constraints at Plant No. 1 by building compact solids treatment facilities and facilitate future expansion. This project will reduce operational costs by an estimated $3.62M annually and has a lower total 25-year operations and capital costs compared to the Sanitation District existing process/technology. Bid Evaluation The Sanitation District advertised for bids on May 8, 2012. Seven sealed bids were received on August 9, 2012. The bids were evaluated in accordance with the Sanitation District's policies and procedures. W.M. Lyles Company was deemed the lowest responsive, responsible bidder. The bids were significantly higher than the engineer's estimate and an increase in the project budget of $24,708,300 is required in order to award the recommended contract. Staff recommends awarding a construction contract to W.M. Lyles Company for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, for a total amount not to exceed $126,908,300. Page 2 of 8 Summary information on the bid opening for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, is as follows: Project Budget $147,270,000 Construction Contract Budget $102,200,000 Engineer's Estimate $102,200,000 Lowest Responsive, Responsible Bid $126,908,300 High Bid $147,928,647 Bidder Amount of Bid W.M. Lyles Co. $126,908,300 Balfour Beatty Infrastructure $127,846,000 J.R. Filanc Construction $130,544,357 J.F. Shea Construction $135,413,689 Shimmick Construction $139,916,069 Flatiron West, Inc. $142,000,000 Archer Western Contractors $147,928,647 Balfour Beatty Infrastructure, Inc., the second low bidder, and Moyno, Inc., an equipment supplier, sent formal protests of the award recommendation to the Sanitation District following the bid evaluation and notification of award recommendation. Staff reviewed, considered and responded to these protests and Staff determined that the protests do not merit a change to the award recommendation. PRIOR COMMITTEE/BOARD ACTIONS June 2012 - Approved Equipment Pre-Selection Agreement with GEA Westfalia Separator, Inc., for a total amount not to exceed $14,665,007, in a form approved by General Counsel (Attachment 8). January 2012 - Adopted Resolution No. OCSD 12-01, a Resolution of the Board of Directors of the Orange County Sanitation District, making findings pursuant to Public Contract Code, Section 3400 in support of the Sole Source Specification of Sludge Cake Pumps for Sludge Dewatering and Odor Control at Plant No. 1, Project No. P1-101, approved plans and specifications, and authorized staff to advertise Invitations for Bid and solicit bids. November 2010 - Adopted Resolution No. OCSD 10-21, adopting the "One Water, One Watershed" Integrated Regional Water Management Plan and authorized the General Manager, or his designee, to enter into a Grant Funding Program with California Department of Water Resources for monetary assistance under Proposition 84, for the Sludge Dewatering, Odor Control, Land Primary Sludge Thickening at Plant No. 1, Project No. P1-101. July 2010 - Adopted Resolution No. OCSD 10-10. A Resolution of the Board of Directors of the Orange County Sanitation District, making findings pursuant to Public Contract Code Section 3400 in support of the Sole Source Specification of Thickening and Dewatering Centrifuges. Page 3 of 8 ADDITIONAL INFORMATION The lowest responsive, responsible bidder is W.M. Lyles Company in the amount of $126,908,300 and is higher than the engineer's estimate by $24,708,300. Due to the significant difference between the engineers estimate and the low bid, staff, along with the Design Consultant, HDR Inc., analyzed the following: 1. Compared engineer's estimate to the low bid by reviewing bid documents, bid item pricing, subcontractor pricing, and focused on areas where there was comparable information from bidders. 2. Revalidated the P1-101 Project by updating economic the comparison of solids processing alternatives study completed in August 2010. 3. Evaluated the potential savings and costs for awarding the contract or rejecting and rebidding. 1. Comparison of Engineer's Estimate vs. Low Bid The Design Consultant, HDR Inc., and OCSD staff evaluated the reasons for the difference of $24,708,300 between the engineer's estimate and the low bid. The summary of differences in the engineer's estimate and low bid are listed below: Cost Item Cost Difference Comments/Reasons Contractors markups for Based on recent bids evaluated overhead and profit $12 million by HDR, the markups were based on optimistic assumptions Contractors are concerned about Low escalation value $3 million inflation of commodity prices on multi-year projects Building and site materials $10 million Engineer's estimate was low Equipment costs $4 million Engineer's estimate was low 2. Revalidation of the P1-101 Project If approved, the Project budget will increase by $24,708,300 for the construction phase of this Project. Due to this impact, staff directed HDR Inc., to revalidate the project economics by updating the August 2010 study that compares the costs of solids processing alternatives at Plant No. 1. The revalidation was based on current and future wastewater flows, process configurations, land constraints, and engineering economics taking into account costs for energy, biosolids hauling/management, labor, chemicals, facility repair, and rehabilitation. Three basic process configurations were analyzed for a variety of conditions: Page 4 of 8 Alternative 1 — Current Configuration: In this system, primary sludge is thickened in the clarifiers, Waste Activated Sludge (WAS) is thickened with Dissolved Air Flotation Thickeners (DAFTs), the thickened sludge streams are combined and digested, the digested sludge is dewatered using belt filter presses (BFPs), the dewatered cake is stored in silos, and the cake is hauled offsite for various beneficial uses. Alternative 2— P1-101 Project Configuration: In this system, primary sludge and WAS would be co-thickened with centrifuges, the thickened sludge would be digested, the digested sludge would be dewatered with centrifuges, and the dewatered biosolids cake would be stored in silos and then hauled offsite. Alternative 3— Blended Configuration: This is a hybrid of the first two configurations. Thickening and digestion would be the same as the current configuration; however, the digested sludge would be dewatered with centrifuges. 2012 Present Worth Update Present Worth, $ millions Alternative Capital R&R Operating Total 25-Year 1 - Current Configuration 265 134 474 873 2 - P1-101 Project Confi uration 205 119 393 717 3 - Blended Configuration 237 125 366 729 The following conclusions were derived from the revalidation study: 1. Centrifuge thickening and dewatering option for solids handling has a lower present worth for the 25 year and 50 year life periods. 2. Non-economic factors such as space utilization and operational flexibility still favored centrifuge thickening and dewatering processes for solids handling. Based on economic and non-economic considerations, centrifuge thickening and dewatering processes for solids handling at Plant No. 1 (consistent with the existing P1-101 design)was confirmed as the best long term facility option. 3. Award and Rebid Options Following are options for moving forward on this Project: Reject all bids and rebid the Project: Under this option, the Project would be redesigned and rebid. Potential design changes to reduce cost were reviewed. However, staff does not recommend this option due to the following reasons: Page 5 of 8 a. There are not sufficient design changes and deletions that would result in substantial cost savings for this Project. Value engineering was performed for this Project in September 2010 and recommendations were implemented during the design of this Project. b. Significant additional design fees would be required for the Consultant to make design changes and rebid the Project. c. Staff estimates a delay of nine months for the Project to be redesigned and rebid. The delay cost for lost operational savings and inflation can be significant and offset any potential redesign savings. In addition, delays increase the risk of not having the required capacity or operating equipment to meet demand when needed. d. There is no assurance (because of market timing and Contractors' workload) that cost savings will be achieved by rebidding the Project. Award Contract to Lowest, Responsive, and Responsible Bidder: Staff has evaluated bids and determined that W.M. Lyles Company is the lowest, responsive, and responsible bidder. Staff will continue to pursue savings on this Project without relegating safety, operational, and maintenance issues. The three lowest bids are priced within a 3% range. This close price range confirms that the Scope of Work was properly reflected in the contract documents (plans and specifications). Based on the findings described in this agenda report, staff recommends awarding the contract to W.M. Lyles Company, the lowest responsive, responsible bidder for a total amount not to exceed $126,908,300. Sole Source Items The Sanitation District has designated the following items by specific brand or trade name pursuant to Public Contract Code §3400 (b)(2) in order to match other products in use on a particular public improvement either completed or in the course of completion; or, §3400 (b)(3) in order to obtain a necessary item that is only available from one source: Cutler-Hammer—Switchgear Circuit Breaker Air Products and Chemical, Inc. - Hydrogen Line WEED Modbus+ Communication - Programmable Logic Control Processors Modicon Quantum - Programmable Logic Controls Cisco - Ethernet Network Switches Edwards System Technologies - Fire Alarm Systems Securitas Services USA - Security ION 7550 - Power Monitors Casi-Ruso - Access Control and Security System Sumitomo Electric - Fiber Optic Network System Westfalia and Alfa-Laval - Dewatering Centrifuges Westfalia - Thickening Centrifuges Seepex - Sludge Cake Pumps Page 6 of 8 CEQA The recommended action is within the scope of the Subsequent Environmental Impact Report for the Secondary Treatment and Plan Improvement Project, dated March 2005. The Subsequent Environmental Impact Report for the Secondary Treatment and Plan Improvement Project, supplementing the Sanitation District's Strategic Plan Program Environmental Impact Report (PEIR), was certified in October 1999. Pursuant to CEQA Guidelines section 15168(c)(4), the Sanitation District has used a written checklist to document its evaluation of the recommended action, and has determined that the recommended action is still within the scope of program EIR. In addition, the Project was determined to be eligible for a categorical exclusion under the National Environmental Pollution Act (NEPA) in June 2006. BUDGET/DELEGATION OF AUTHORITY COMPLIANCE This recommendation complies with authority levels of the Sanitation District's Delegation of Authority. This item has been budgeted (FY2012-13, Section 8, Page 55) but the budget is insufficient and requires additional funds to cover the increased cost of construction. If approved, additional funding will be transferred from the Replacement, Rehabilitation, and Refurbishment line item identified in Budget Section 4 - Page 16, line item 13, to the CIP line item 12 and allocated to this project. The funding will be transferred by fiscal years in the following manner: FY 12-13: $791,420 FY 13-14: $3,415,850 FY 14-15: $10,088,780 FY 15-16: $8,157,530 FY 16-17: $2,254,720 Date of ADDroval Contract Amount Contingency 11/28/2012 $126,908,300 $3,800,000(3.0%) Page 7 of 8 ATTACHMENTS 1. Balfour Beatty Infrastructure Award Protest letter dated October 5, 2012 [Enclosures on file with the Clerk of the Board] 2. Balfour Beatty Infrastructure Supplemental Award Protest dated October 12, 2012 [Enclosures on file with the Clerk of the Board] 3. Balfour Beatty Infrastructure Supplemental Award Protest dated October 30, 2012 [Enclosures on file with the Clerk of the Board] 4. W.M Lyles Company response letter dated October 11, 2012 5. OCSD Final Disposition letter dated October 15, 2012 RE: Balfour Beatty Protest dated October 15, 2012 6. OCSD Final Disposition letter dated October 31, 2012 RE: Balfour Beatty Protest dated October 30, 2012 7. Moyno, Inc. Award Protest letter dated August 23, 2012 [Enclosures on file with the Clerk of the Board] 8. OCSD Final Disposition RE: Moyno Protest dated October 4, 2012 The following attachment(s) may be viewed on-line at the OCSD website (www.ocsd.coml with the complete agenda package and attachments: 9. Contract Agreement (33 pages) 10.Pre-Selection Agreement (21 pages) JH:DF:UM:dm:gc Page 8 of 8 MARKS, FINCH,THORNTON& BMRD, LLP ROBERT J MARKS, APC V ATTORNEYS AT LAW JON F. GAUTHIER. APC V I F'NCH JR. 4747 EXECUTIVE DRIVE - SUITE 700 DANIELLE C. HUMPHRIES I-ON CHRISTOPHER R. SILLARI -_-_ SAN DIEGO. CALIFORNIA 9 2121-310] DUSTIN R. JONES TELEPHONE (BSB) ]3]-3100 uURAURA B. MAC xEEL -_ FACSIMILE (55a) ]3]-3101 RODRIGO F. MOREIRA SAN IEL P. SCHOLZ 'IT2 INTERNET WWW-m11D.COm RNA P- KENNEDY E-MAIL P1incM1QmnM1.cOm ADAM C. WIL T _ DRETT T. WALKER i L�� M. KATY ROSS dL R _ E October 5, 2012 J. PATRICK HICKS '=R V OF COUNSEL OUR FILE NUMBER - - VEHRILL. 1439.001 BID PROTEST VIA FLECTRONICMAILAND C\1TFD STATES PARCEL SERVICE Ms. \a- 'm b;. Prirci ,, C,rti a, .1dn-ir:,ii-tor I I cz [ I I , ya', Ln'.,,i Ul,trict L:,Lct�l Jle�. CI I :1 'I"OS Re: IrOrange County Sanitation District Sludge Dewatering And Odor Control At Plant No. I PI-101 r.. Bidder: W. M Lyles Company Balfour Beatty Infrastructure Inc Dear Ms. Dubi 1, 1:,t -_I, ion R2 e;c n- f3rd four Beatty Infrastructure,Inc.(Balfour Beatty),having its principal l,I: .,i d_:-ia zdcross and phone number of 5050 Business Center Drive, Suite 250, F_r=:�,l t all: I ii , ,is_A I-07)427-8900. This is Balfour Beatty's protest of the D1,111,- sI)aob�r :. 7I1 no:ice ofintenttoawardtheabove-referenced projeetto W. M. L -1-, ( � ' 1 t WML's bid for the project is non-responsive and may not be axel «zu<c � \11 m-., ci to install a temporary wooden shoring system in lieu of:i•. h ,.i--1 e,i r� ri;_ne t steel shoring system. Had WML committed to install the1) n1, ri-I steel to--:-gAI,tern,it would not have been the low bidder. MoLc .e.: b.iau=- theI):, ct ',no%Ns about WML's improper product substitution,it can r:en A \11 = -i,l ar.d -hen insist that WML install the specified system without paci `:,-`.11. : r1-Ic-iril.'.n:I -.,liar change order. Accordingly, WML enjoyed an unfair con : et-.❑ I 'JI., ',id should be rejected. The District should award the proiaa', to B, io_Ir Beta, _, :i. lowest responsive,responsible bidder. Ms.Natasha K. Dubrovski October 5,2012 Page 2 of I 1 Fict�-�I. I3.:3_round 1'rnject And Bid Documents 1 1. the District issued its Notice Inviting Bids and Bid ). for the District's Sludge Dewatering And Odor Control 1 I' -w I Fr, t [1, re:-. No. P1-101 ("Project'). The Project consists ofthe I �>:'>-i.._ >]-,-,a dewatering and odor control systems,and the installation 1r�n n �I o 1 to activated sludge thickening systems. Construction requires f h�_- z Cr-table pipe systems,valve vaults and tunnels,as well as �nolIcr, -ponents and existing pipes which will remain. 11.a'_:,n {'.:'-e Cis Oc'cuments which are relevant to WML's bid deviation are Jx. .:n- C`nldl lLed Oul n_ _ >s period prior to the bid deadline, prospective bidders could d_.i ri:1 cation of the Project plans and specification in writing. (Tab 1. \.,=i..z Inviting Bids.) Bidders had a duty to request the District's it ler-r.:z:i: n of any portion of the Bid Document about which the bidder , JI :,I:I cib= as to the meaning...." (Tab 2,p. 3,Instructions to Bidders, IB--. >chi d e�- �< required to submit responsive bids. (Tab 2,p. 7, Instructions U Jc:v�. M-14, subd. B.) "Bids submitted in strict accordance with _..o I U. -aments [the Bid Documents] will be deemed responsive. • Bidde 1 J not submit alternative bids, i.e., bids that are not precisely based n the Bid Documents. Section 8 of the Instructions To Bidders clear states: IS-8 MOGIF EO AND ALTERNATIVE BIDS Frviate from what is requested in the IFB Documents. jetted when the Bidder imposes conditions that would modify s the IFB. Irir-iaS::-> I Bidders, § IB-8, subds. A and B.) In _�za..c. ..re with the California Subletting and Subcontracting Fair I'caiem , . Public Contract Code section 4100, et seq., bidders were rc,rr.r_d disclose in their bids each subcontractor that would be r'. mi[r.a in excess of one-half-of-one percent of the work. (Tab 3,p. 3, 1 - `. rm No. 2.) Ms.Natasha K.Dubrovski October 5,2012 Page 3 of 11 h- Ric _Jocu7ents required the two apparent low bidders to escrow their Bid with the District as part of their bids for the Project. (Tab 4, p. Provision § SP-13.) • The 1) 11 c I :aserved the right to reject any bid it received. (Tab 2, p. 9, Instnta I Bidders, § I13-19.) B. The B�Iow-Water-Table Steel Shoring System Specified BT I':a District And The Pre-Bid Question And Answer n-zr t, included a Schedule of Prices which required bidders to sc^t ate 1,i i s Lx Pro s c i , extensive shoring work. (Tab 3,p. 32, Bid Forms.) The 1,T)ra 1 ii , -« i r i- ;ring system below the Centrifuge Building which was designee to protcet t I Ater-table pipes and tunnels. (See Tab 5, Dmwing Cl-7006.) For example,the Pic' --c,ings include rotes such as: 5. " --IN TUNNEL 17 ALONG ITS ENTIRE LENGTH. SPECIFICATION SECTION 01722. PROTECT.ON a WACENT CONSTRUCTION FOR -U.REWNTS AND LOCATION OF SIIORINt -LT THE 72' RCP TFE PIPE ALONG ITS -tit it LENGuL SEE SPECIFICATION SECTION - ,2. PR01E0T10N OF ADJACENT s�UCMN FOR REOUIRFHENTS ANC i .ATION OF SHORING. (Tzh Sl The llistric gip:crud a steel shoring system which will be left in place after P: -it 1ci r) the finished Project. (See Tab 6,Specification Section -Est Piline.I P-i r :o Si d. the Dis_-i et published an answer to Bidder Question No. 27 regarding LE< car_c: f 9;e sh.tiring s amm under the Centrifuge Building. A copy of the Question �eJ _t L:b 7. Summarily,a bidder identified plan sheets detailing the e' ,I �r1 n _I d _ 6. : rr-1 i ch type of shoring was required to be installed. The District ❑-<rterec i:--,clearly that steel sheet shoring was required and referred ]Sc, I I r. section 02361, Steel Sheet Piling. (Tabs 6 and 7.) The District's .c t Lractors to `Bid as specified."t )i-triet has the discretion to specify whatever shoring system it c� Jed, in insisting that its contractor install the steel sheet y-eb L i_J_i r*_psi r is phrased no elicit an answer that would have allowed bidders the -. . i ii , F - .�.��-.i :Paringsystem. The question states,"Please confirm that specifically F I _ -i- i- 'i. required in this location and the contractor has an option on which type 'ri,,r words,the contractor that asked the question wanted to use a cheaper a� T _ i n - F._.,d E i d that m(�e electing instead to enforce its soecifications. The Usv:t ciJ I t F s L' 11 _1: otthe bidderthat asked the question. arcitz h. Drat .ski Pa_,, Lof _ sho-i,,- I i i, t,.e of he steel shoring system will minimize the chance of ic,, and _,i>6r_ pipe below the Centrifuge Building because the system can re :,,i r: plzea. R,n_, it o' shoring system after construction often requires significant h_iti cn: n_`tha v,-c_ to pet it to detach. That vibration could damage the underground p17a. : _, i I .Gone pipes. Accordingly,the system needs to be one that co_:Ic Pe lrn pa rn,a::an.� Icp.ace. Anon-steel system,such as a"beam and wood car. . sen_. :n_:IJ nn- >_afCe. Beam and wood lagging systems consist of treated L:n4cr r�l.ed Fehr -i,,a: steel beams,and are substantially cheaper than steel aa:n� ,tre final �r, ate1, t „nnanent shoring systems where the treated lumber Cte r+a t-� c . i I I de-er.orate much quicker than steel. The steel system is ;uaerior x:c rras sFeci;i e :o such in the Contract documents. �ecorc tha s:ri s,,rr. is essential to the Project because the shoring will be Iocc--1 iF n , °act allot+ 1h. tII itcr table and must therefore be water tight. Atimber -•.�lem ear not a�1[e,t the it-oisture seal that the District would achieve with an terloc 1,-J stae_ aanel s'torla_ system. Photographs of steel shoring systems and beam �ad tt a la _Ic= 1 , t-m_ sN siems are enclosed at Tabs 8 and 9,respectively. t the District's Receipt Of Bids I ire I) ;ri at ec,,iced the following seven bids for the Project on August 9,2012. L,l, _ Amount Percent From WML `.ARIL $126,908,300.00 Balfour 3cau� $127,846,000.00 .73% J.R. ei_ana $130,544,357.00 2.8% J.F. shee isinaioi $135,413,689.00 6.7% ShimmiA Coso,rccou $139,916,069.00 10.2% Flatixn A`. ,st 1-i $142,00 ,000.00 11.9% Archer R�itrz-.ors $147,928,647.00 16.6% (Ta[, I c. 1)i;t-,c t _Ii-riarn of Bid Results.) Balfour Beatty's bid was less than three- quaras of c accent 1,i:1:n�4 'A ML's bid. D. WMI.'< Shoring Substitution While Balfour Beatty Froposed to provide exactly what the District asked for, oFF, s to za Fcn I'ch. WML's bid includes use of Sehnabel Foundation per-orm wood shoring work as opposed to the required steel. \\ \I L.r,tac nah-II 't storing subcontractor on WML's bid. (Tab 10,p. 1.) a.— cr : t t proposal,a copy of which is enclosed at Tab 11,to Balfour [-Ill-- Is. \II_ eased on the District's prohibition of bids that"deviate from rcbat is xq_iesteJ in tha le 13 c-,In•:acts"(Tab 2,pp. 5, § IB-8.),Balfour Beatty rejected I .na,»J �,,, _se Schnabel proposed a beam and wood lagging system ',. \r„ha K. Dubrovski 14tr.^cr �- J012 sq.l re J ;tce' sy stem. Schnabel's bid states under the Scope of Work z.:i, i I h, i i) ill c(a si st of drilled in steel solder piles with timber lagging -a.wJI the h:Is. _ ., bean- and wood lagging system. (Tab 11,p. 2; we also JP _:-..e= Its proposed wood shoring system on its website,a copy of _:•.:dais ,.J :.- T::b The website confirms the wood system is designed for ip, r-r. .-zth- thn r,:n.:.nent, protection,stating: \zct.rt', , ;t.FP 11. as herein described, refers to a temWrary shoring =tur tIAt b1111: from the top down, a sequence that provides i:r.>...1 < <1 1- the soil as the excavation proceeds. • • t Olie:i '1-: i: meal support system is a soil nail wall or tiedback 'Cl]:,,: b._:n i ,.3 lagging wall. These systems function to support tLc s_ri, -ncm_ ,_1,_nJ during subsurface excavation and only until the hzscc�cct r,as tnJ :'oor slabs are constructed and achieve strength; at th : :iron ttc ne,, I .ndation walls and slabs take over the support which sr a, nr„iJec be tit: cxaavation support system. (Tab 12 J--i :ably,Schnabel does not install steel shoring systems. 13a-d _:r I3:_an LoIt- Iliance with the Bid Documents and agreement to supply the s-ce1 i c ;tag _ht-lr c <,iem, instead of deviating from the Bid Documents like V6AII -c.c6,J -.i ILxut_ the apparent low bidder for the Project.2 Scbnabel's beam and .c J I , i ri rr - .t prsc was$1,521,600.00. Balfour Beatty's cost to install the stce. ;1h r. r_ tan- "-n 1.800.003,which is$2,083,200.00 more than what WML agrre l . , �ch:_ah_I r i a substitute wood system. Thedifference between Balfour fie,-, - _i:, t� �I I r.-ic $937,700.00. Had Balfour Beatty used the Schnabel bid, its price 1) e hee❑ o�cr $2 million lower and over$1 million lower than WML uni i t i,, r competitive advantage taken by WML by use of Schnabel's wood TI:, _-io. c.... c =i, P%I I-'s substitution of the beam and wood lagging system,for the specified cc] -:r i. . . .:,ir._ '`d %I'.'s escrowed bid documents. As a"condition of award of the Contract;' nrJ h r i,-a_ -cd to deposit with the District"all documentary information .-:.lc_ Ir ,r:i _r. hi -ica= for this Project." Accordingly,WML may not be awarded the -:a , _-- n - -.r a vba_ s barn and wood-lagging pmposal as part of its bid deposit. As J, .id -tl V I. iJ r i'J:. Bch-abel bid,the District may not enforce its bid documents against bd„astorwooclshoring,notstcel. f c J in its Bid Analysis Sheet 03 escrowed with its bid documents. The n,a bay a<ed b. 3:Ji�r Ts", 'ncra is exclusive ofmovement monitoring and bond so it reflects a true cs-al'. mid. Ms.Natasha K. Dubrovski October 5, 2012 Page 6 of I 1 shoring. In mhenNw,ds. the single reason WML submitted a lower price than Balfour Rea: �i; �aiUl[Lc:�ia:cd from the requirements of the Bid Documents and accepted schnabcl =_ prep:',] to sc�,cic.ae the shoring system. _ . CmIra^:'a. I.ass Precludes Acceptance Of VAI: s 13i J 3ecause Of The Shoring Substitution a. s., n c,.x- Of Competitive Bidding Law a rsporsi,c HJ is cr_c that conforms to the project specifications. (Konica v. The Regents ofhe University ofCalifarnia(1988)206 C al.a^p a d --9. III 1i�n; ca Business Machines,the California Court of Appeal scrai_cdy s:,ccd cce corsegccrces of filing a non-responsive bid: a has:c -.Lc of competitive bidding is that bids must conform to spcci5cacons, and that if a bid does not so conform, it may not be ar;crtcc :1l at p The Court outlined a narrow exception to this general r.(x. :-.ohlinc .I c,.-i ir.. - hiJ irregularities may be waived only where the defect: (1) haI: a-]ee:-- th- :r))''Lint of the bid;"and(2) the defect cannot have resulted in ar ads .n , . >r ben_` t .i : ,]:owed other bidders." (Ibid) Further,the Courtstated: ::rtial for abuse arising from deviations from strict ac`ierena� I-1.1ni- which promote these public benefits, the letting of :r'.i,.rsally receives close Judicial senrtinv and contracts rcir��J c.i-.__out strict compliance with bidding requirements will be set :rile. s s I I in.-.-. Lance of maintaining integrity in government and the ease with I,. I<f.-.cp goals underlying the requirement for open competitive I),, -c s1. -ertitiously undercut, mandate strict compliance with h.ddln_ -^c-Lifrznzns. emnSasis added;seealso Valley Crest Landscape, Inc. v. City C-:, 7 ; 996)41 CalApp.4th 1432, 1440.) :1F p r. 11z LI[-—e p-f nciples,the Konica Court Wiled that an alternative bid,one at ,l: ,. , tt-re,:- :han what is specified,may not be accepted. In that case, ::I e t ni s c " c f C, t in I f_i l-lished a Request For Proposals seeking offers to supply copy machirr- ['sfcre,ancecapabilities. (Konica Business Machines, ,;'T u. _",. t.,l._\cp.`J -! a[. - -+J3.) The low bidder offered copy machines that met I ns I-m :ell short of others. (/bid) The Court held thatthe bidder t _ sCai I n- i r ;h c alternative bid,which Califomia law precluded the n:t, In -1 1 fl_ 4l at pp.455456.) As detailed below,California Law n z,,opting WML's bid far the same reasons. t )'. A I Ri d Does Not Conform To The District's S fz,i:_,ations And Is Therefore Non-Responsive J :rat S:n: core clearly expressed the requirement that bidders ;upa? -h, r_r:_ .,.. _n -other than a wooden system. The Project plan sheets V- t 1, t I s}stem (see e.g.,Tab 5)and the Project Specifications ou:lir i Ps,is: r.-, :r:a_ ie n.,tallation requirements(See Tab 6). In response to a:Jder-- .p.:«I ;r. the D_;irie: reinforced the steel shoring requirement. (Tab 7.) There -na: :, J_;ou- th- Bit _),,uments mandated the steel shoring system. t.r_ , w a_s e ,t o J-spute that WML's bid deviated from those requirements. '�i J -ui-,t t uzd a �ood shoring system and offered to perform the work at a :: � 7 -i 11 i o fl I'ab 11,p. 1.) WML listed Schnabel on the face of its bid xrt, i n r_t1 <r i i ,ar for$1.6 million. (Tab 10.) Schnabel does not sell or t,-J = _J ,t, 11, , ,tom,. Finally, WML's escrowed bid documents confirm its bid -.ndcJ:< dh r.'. 1i ::ooden shoring.' Summarily, WML's bid deviated from the Hit 1), dh-i : xenon-responsiveand must be rejected. C ._12rn_a Law Precludes The District From -,i The Defects In WML's Non-Responsive Bid JeaI- '.re District could only waive WML's bid deviation if the I-, i n- t_n <,I-, i .i could not have affected WML's price or given WML an .� ..n - �<i t 1'1 , i �h %\a, not afforded to bidders who complied with the Bid �) t.11_., J TW—ion ofthecheaper shoring system offered by Schnabel a_rated A \11_ u':,,tar.:ia_', lower itsprice. Conversely,Balfour Beatty's bid price SJg-_ hi-Ki fIar it would have been had Balfour Beattyaccepted S,Lnah, : pc p, s d zr.J o[sr,d the District wood instead of steel. Asa result,WML's d,,iatofl T w, tat <,-Cu.atons resulted in an advantage or benefit which was not ,-;o,--� AAVlL comp,:i-.or,. Accordingly,California law precludes the District from „aicSm• )CVOsh14 Jedatiur. di sc I e,,do not contain and incorporate the Schnabel bid,than they are 'rt��xdaia. Asare-clt %,\I:_nrc'.d nor be eligible to be awarded the contract. (Tab4,pp.6-9,Special T c � . i)ri -, i of complete Escrow Bid Documents ism essential element of the 3ldce=+-:=pors:Neness anon to Contract Award!]) This provision illustrates the District ti,c cscrcweddocurrsr-s pre-award. \L ynu.L.: ti Ucbn,.rkl I en i-i he D1 t n_-ic] to require WML to install the steel shoring, WML would —c :i , i[,- :ire ad vantage over the others bidders based on the fact that >.h r.z I] cct b'.1 :a' c e r::c not install the steel shoring system. WML would have th I'I':r"-litit 'U"t tre �chnabel off the Project pursuant to Public Contract Code vef. r -1 21 I-id—h I- the shoring work to other subcontractors with the post-award _e'.,r. __ r l-<i.:tr_ 1-..n awarded thejob. The ability to bid-shop post-bid is a i i .� -r.0 i-n;t .:ing finding WML's bid non-responsive,and also contrary t,, t]-.c .�iq-, ,i O:e S h'.etting and Subcontracting Fair Practices Act,Public Contract D. Che Rid Documents Require The I)'.s:, c t )u Review Schoabel's Proposal To WML C`ili riia :z.. .cccii.- public entities to enforce and follow the riles and i:'r 1 th.ir bl c documents. (Pozarv. Department ofTransporation tie.:_r,gyp 'r,, [',..dder was entitled to writ of mandate based on public i i—� i ,rcn bid documents].) Here,the Bid Documents provide :Sat )er ar ro-::i rr) escrow complete copies of all estimating documents as a n.i;t;- niccc-t rr, ,l the Project. (Tab 4,p.6.) Because WML listed 11:J Jc r i t� a' a i to ,: it, subcontractor, the District has the ability and duty to c.t,rnti _ ,.nth '- %I se a-ed Schnabel's proposal to WML. If WML failed to ,.,,i. tht >e`. , -I1-i,, ,I WML did not meet the mandatory condition precedent to r zr.i it i 1:of L -,J the Project,regardless of whether the District considers ". \I I.'s h. [. b- re'pon-:�e. (Id.) Failure to verify the escrow requirement by opening the subs: -ic:t - ii be a violation of the District's own Bid Documents. F. l Se District Cannot Enforce The Bid I)eC,�ments Steel Shoring Requirement Against Recause It Knows WML Proposed Wood Shorne Calif, ' zrc ni _:yes the District from accepting a bid and enforcing its bid docume�t� z_zir.�t a b'.�.io: rr here the District knows,prior to award,that the bid contains a nt_st-�:.. Inglewood Unified School Dist. (2004) 114 Cal.App.4th 'e Scol district owner received bids fora project,all of which escce,A :L, _;)_cl. The district knew the low bidder onthe project rot=-z er 1 I_.i ., ri-L.c. tl, plumbing scope of work,causing the bid to be it (Id. at p. 1020.) The district nonetheless accepted the erroneously Sr.abh P.?71. =L: 1 �r-- -tractor,Schrabel,without confirming it can perform the specified sr R V_ r k ,- of the responsibility standard set forth in Public Contract Code section A r't i t s::ons To Bidder. (Tab 2,p.7.) A contractor cannot be considered a "responsi file" mmractor alter I'.stairs a subcontractor that is incapable of performing the specified work on a project of the size anc romp \i'.p of the Project. ;hs PaIc't .ki Ps_a�t , „ _ .c srJ a::ar nrec r�� 'orce, the bidder to perform the project at its artificially low bid Fria Iad';tracur:ended the bidder most perform the project as specified Lo -,Ill i,i a C Ion of Appeal disagreed,holding the district was estopped from rz1.•. tL h-alder t.. -. 'orr-. :he work as specified because the district knew about the -.r. d,r J it i I srcine the contract. (See also,M F. Kemper Conn. Co. v. City , I " I -- C s_._d 696,702-703 [holding the City could not enforce a bid _ t t:ci to_ I+hei tcz City knew the contractor's bid contained an error making thol-id ccec;cs-r_ cl car]y supports the conclusion that it would be ,c'.rI-:de cold :ie co:noar, to its bid at die mistaken figure....it appears that it ._c I' I'_ist and unfair to pennu the City to take advantage of the company's t hz the owners in the cited authority,the District now knows that WML's bid -;- ...e fcll scope n ltheproject; it is farwood not steel shoring. Assuch,if Vt U- r t^ rJ;d z Pr.�'id,t the District could not insist WML instep the steel di ri:-; it .i_t i _tr-.n_ WML a change order to cover the additional cost of that <:-11 a� J,t_ Ida]- - :!-;rot cost would exceed$2 million,meaning that WML would i i n _k I - :i �I it :on more than Balfour Beatty's lowest responsive bid to r, frcth,,, reasons, WML has an unfair competitive advantage in that it r r`e r a nr.s c`, deviating from the bid requirements. Consequently, ec :r_da writ of mandate would set aside any award of the Pro':ct r A ',I i 21 r,mess Machines USA., Inc. v. The Regents ojthe C nlvereuy of t- 306 Cal.App.3d 449.) } A \I I ==_Deviation Appears On The Face Of The Bid 0:e n E i l', th- F: ;ti on that WML's bid may be considered responsive because 'A V11 dcc: ;tn ctc!ion did not appear"on the face of the bid." That stn_eniit -ac-,it iasdu .oni,�n '_D.K Williams Const, Inc. v. Clovis Unified School (-al J 1 _d 7. -1here,a school district rejected a bid as non- resr�msi•.v bsat:« the Jer inadvertently listed a subcontractor that was not licensed r;;c i.r s license defect did not appear on the face of the bid-the .)i- ,tI iIlmer .i i %rn research into the subcontractor's license status. The rod cne� 1-1 d�,r i 1_1 i '.arm a:i: challenging the determination that the subcontractor license defect rendered i:; b'.c non-responsive. The court held :cat '.ite bid was,in fact,responsive because neither the bid documents nor Calif.,rn;a prohibited bidders from listing subcontractors that were not -,,I :it [',I I I i:,,, tr a id was technically responsive,the court surmised that it ,,I, f the district found,after a hearing,that the bidder was not i e.. Iscked the fitness,quality and capacity to perform the work),based on V6. A.: >La IAI ski r I '. t!-a 'an flat :. dr. I i,- an unlicensed subcontractor. Since the school district never _lz_J a ran-11--ins n,,:r_that issue,the court held the rejection of the bid was i r.ihr ?:r -:ae LIT '-: try and liken WML's shoring system deviation to the subcontractor :cur n /r : If'., -r. :on tending that neither defect was apparent"on the face ,'11-eIhd m .c::Ser defect coa:d render the bid non-responsive. Thatargumentis ii-tL r- n-a,it. Ii re'.. the bid in D.H Williams was held to be responsive because there simply , i;-- re-icr III "srec subcontractors be licensed The court's holding and ri. 1) I: lid m. t J-r'or.J ::t .it, way on whether the defect appeared on the face of the hiJ. lsi, r:ol;. tho Di lln,.:ments in this case: (1)expressly required bidders to 11ec_ sL,ri n_ _r x_n-: and(2)prohibited bidders from submittingaltemativeor Ja.it- b'Js. t'. VI S hj iniated both aspects of the Bid Documents. does not hold that responsiveness must be determined fit'it- 1 he Lac or it h1J. Rather,the court stated that"in the usual case,the de t c•. :hlt a 1) ,,esponsive is not based on disputed facts,does not involve LIE I,IT -::_ c , ci=.-ot -l. and does not require a hearing for the excluded bidder." fld _ -c4. 1 Li'id,r rg< i,i kility,on the other hand,"is a complex matter dependent, o R. ' ,it it' u_tC.n i r: _.I outside the bidding process and requiring,in many cases, an ahFIT,,,1,n . I uJ -lent" (Ld) Thus,the responsiveness/responsibility, dis-i,tcr,:- J:re.tc> ,I) r hc.':r the determinarion is based on disputed facts requiring favEr J-.n_ J-, Lit , zn,tir'l:r. matter. In WML's case,there are no disputed facts. ScF.:iah_I 7,rc9t 1, ,v:de the cheaper and disallowed wood shoring system. VA V 1.'; hi,i al.t to �ch:abel and WML, in order to be considered for award,filed - a core of Sal-nzbel s r •,- Ala ith the District in its escrowed bid documents. Since then -T. no disputcc thcre is no need forthe District to apply"subtle judgment." N'ML's bid defect renders WML's bid non-responsive order D.H. It I lirc. if 1) ,� if?.'Hams held that responsiveness most be evaluated based I 1 t t rrn=i an L i t r !,c bid(which it did not),WML's bid would still be non- =ps IL A ,Loring deviation is apparent on the face of WML's bid. 'A AIL Ii,iaJ �,111 Fc 11, h id form as its shoring subcontractor. Based onthe u:-ci_:,Ll Set t3. 1nahal "id not offer to provide the specified steel shoring system, P. L[L-, 41 c '.> n rt--c—,,j =ir_. Moreover,WML's escrowed bid documents,which al, are essential bid documents that bidders were required <tian-i t h, c.l t t. ?r,rject. Those documents are part of WML's bid- WML r _'-et without submitting them. �r_-ur�:'I.. �:•. n:nt that WML's bid was responsive because the deviation tr e-i Bel t n.i J ::,'. ,ppear on the face of the bid is without merit because: (1)the Ms.Natasha K. Dubrovski October 5,2012 Page 11 of 11 defect is apparent on the face of the bid;and(2)even if it had not appeared on the face of the bid,the defect renders the bid non-responsive because it is based on undisputed facts. 4. Conclusion \1?11 cas the araarert low bidder on the Project solely because it deviated from tht1) -_ t i:ca_nr.; aid submitted a bid offering to perform something different J-.:o •t hcr. th. F3 D,�.r,r.nt, required. Balfour Beatty complied with the Bid Lj-e i i r.nt,. \\-\I I_ < F-.- i, �n-responsive because it ignored the District's clear t I Irea_nr V ". i-id the requirement for a steel shoring system rather than a e:rar.r tt: r :•s:e,r.. I r Di strict is now aware of the deviation in WML's bid and canr t regc is 'A ',11 -: i:-a.t__ the more costly steel shoring without paying WML more n- n.t . A ` I ; n -, ,e bid afforded WML an unfair competitive advantage tt h.il- t " a_-A - � iuur Beatty requests the District reject WML'snon- hi� LJA �ctrc Ix Project to Balfour Beatty. We request copies ofall 11 . b.-tt..nth: District and WML concerning this protest and notice ofany nc<rni:-_ (IL a4.oit issues. Thank you for your consideration. Very tru ours, �Po p •mc Jr.,o MARKS,FINCH, THORNTON&BAIRD, LLP kr P.tni: , ion District _,...- Ab:. 3c:J.<•. R. Hogin,Legal Counsel >Ii I r Herbc Assistant General Manager&Director of Engineering %h Jitr. P( d . General Manager -.ti cr Bspur In:1 ,i icture, Inc. -Fairfield, CA(via e-mail only) -utn. AIr i 11,1-11 Pates, Vice President Western Region ' fi Din Dischner, Chief Estimator MARES,PINCH,THORNTON & BAIRD,LLP ROBERT J. MARKS, APO F ATTORNEYS AT LAW JON F. GAUTHIER. APO P. RAN DOLPH FINCH JR. 4747 EXECUTIVE DRIVE — SUITE 700 DANIELLE C. HUMPHRIES JABON R. THORNTON 8AN DIE00 CALIFORNIA 92121.3107 CHRISTOPHER R. BILLARI JEFFREY S ,. BAIRDDUSTIN R. JONES CHAD T. WISHCHUK TELEPHONE (SSB) 737-3100 LAURA B. MACNEEL LOUIS J. BLUM FACSIMILE (BEE) 737.3101 RODRI00 F. MO REIRA DAVID S. DEMIAN DANICL /. SCXOLZ STEPHEN J. SCHULTZ • INTERNET www.m110.cam RYAN P. KENNEDY MARK T. SENNETT • E-MAIL pflnch®m11D.com ARAM C. WITT DAVID W. SMILEY BETT T. WALKER BERNARD F. KING III M. KATY ROSS NOWELL A. LANTZ M. BTOOER October 12,2012 J. PATRICN HICKS JUSTIIN ALLISON N. COOPER • OF COUNSEL ANDREA L. PETRAY OUR FILE NUMBER • OF COUNSEL r1B MERRILL, SCHULTZ S SENNETT, LTD. 1439.001 SUPPLEMENTAL BID PROTEST VIA ELECTRONIC MAIL Ms.Natasha K. Dubrovski Principal Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley,California 92708 construction@ocsd.com Re: Entity: Orange County Sanitation District Project: Sludge Dewatering And Odor Control At Plant No. I Project NO: PI-101 Non-Responsive Bidder: W. M. Lyles Company Lowest Responsive Bidder: Balfour Beatty Infrastructure, Inc. Dear Ms. Dubrovski: This supplements the bid protest on the above referenced project filed by Balfour Beatty on October 5,2012. The purpose of this supplement is to identify newly-disclosed public bidding records for OCSD's consideration. These newly-disclosed records confirm OCSD should not, and cannot, accept WML's flawed,non-responsive and artificially low bid for the project. Enclosed at Tab 1 is an e-mail from WML project manager,Matt Cain,to OCSD dated July 19,2012,three weeks before the bid deadline. Mr. Cain transmitted WML's cumulative list of 70 pre-bid questions, including two questions at the bottom of that list which WML had highlighted for OCSD's consideration. OCSD ultimately labeled one of the two highlighted questions as Question No.27,which asked OCSD to agree that bidders were not required to bid and install the specified steel shoring system. As detailed in Balfour Beatty's October 5, 2012 bid protest,OCSD's answer to that question unambiguously instructed bidders to bid and install the steel shoring system, i.e., bid according to OCSD's plans and specifications. The WML e-mail at Tab 1 confirms that WML did more than negligently deviate from OCSD's instructions to provide steel and not wood. WML: (1)identified an opportunity to cut its costs and gain a competitive advantage; (2)asked OCSD to Ms.Natasha K. Dubrovski October 12,2012 Page 2 of 2 acquiesce to its shoring substitution; (3)received OCSD's denial of that request; and(4) substituted the shoring system anyway. WML did not just miss the steel shoring requirement while estimating the work—WML consciously ignored OCSD's requirement for steel in order to achieve a competitive advantage which is prohibited under California law. (Konica Business Machines USA. Inc. v. Regents of University of California (1988)206 Ca1.App.3d 449,454 ["A basic rule of competitive bidding is that bids must conform to specifications,and that if a bid does not so conform, it may not be accepted."].) As detailed in Balfour Beatty's October 5,2012 protest,use of wood instead of steel resulted in WML's competitive advantage. The newly disclosed documents confirm WML created an even more lopsided playing field. By submitting its question and eliciting a published answer which it ultimately ignored, WML made certain that none of its competitors would make the same illicit shoring substitution. In other words, WML made sure that it was the only bidder that enjoyed the more than $2 million savings on bid day. OCSD should not condone and encourage the circumventing of its instructions and California public bidding law. The project should be awarded to Balfour Beatty Infrastructure, Inc., the lowest responsive and responsible bidder. Thank you. Very truly yours, P.Randolph Finch Jr., of MARKS,FINCH, THORNTON&BAIRD, LLP Enclosures DRJ:kam/3418762 cc: Orange County Sanitation District Attn: Mr. Bradley R. Hogin, Legal Counsel Mr. Jim Herberg,Assistant General Manager& Director of Engineering Mr. Jim Ruth, General Manager Balfour Beatty Infrastructure, Inc. -Fairfield,CA (via e-mail only) Attn: Mr.Crandall Bates, Vice President Western Region Mr. Dan Dischner, Chief Estimator MARKS, FINCH,THORNTON & BAIRD,LLP ROBERT J. MARKS. BPC • ATTORNEYS AT LAW JON F. GAUTHIER, APC P. RANDOLPH FINCH JR. /747 EXECUTIVE DRIVE - SUITE TOD DANIELLE C. HUMPHRIES JASON R. THORNTON CHRISTOPHER R. SILLARI JEFFREY B. BAIRD SAN DIEGO, CALIFORNIA 92121-3107 DUSTIN R. JONES CHAD T. WISHCHUK TELEPHONE (058) 737-3100 LAURA B. MACNEEL LOUIS J. BLUM RODRIGO F MOREIRA DAVID S. DEMIAN FACSIMILE (858) 737-3101 DANIEL P. SCHOLZ STEPHEN l- SCHULTZ INTERNET www.ninb-OOm RYAN P. KENNEDY MARK T. BENNETT v E-MAIL DLIn Cb�mUb.COm ADAM C. WITT DAVID W. SMILEY BRETT T. WALKER BERNARD F. KING III M KATY ROSS NOWELL A. LANTZ J. PATRICK HICKS JUSTIN M. STOGER October 30,2012 ALLISON N. COOPER ♦ OF COUNSEL ANDREA L PETRAY OUR FILE NUMBER ♦ OF COUNSEL v e MERRILL. SCHULTZ S BENNETT, LTD. 1439.001 SUPPLEMENTAL BID PROTEST VL4 ELECTRONIC MAIL \ts. \atastis h. Dctiro�_l; Pr tc_1 .1 L i t-i,tz t Isis-itor h-n_ct "i-i . 1 II1) '[1Ct I \__ [. to ..cr uc Re. '-miry: Orange County Sanitation District Project., Sludge Dewatering And Odor Control At Plant No. I Project No.: -PI-101 l-nn-Remnn,ire Bidder: W. M Lyles Company ,wire Bidder: Balfour Beatty Infrastructure Inc. I7c- A':. IJ 1;-m•.ski: lncc...c_ion eh_J� i ts -.quiresfimdamental fairness and a level playing field. The _I1:cJ ti% B.1iour Bcaa}"s bid protest and WML's response are: I i does OCSD want the pemtanent steel shoring that Balfour Beatty read the dec uments to require, or is OCSD satisfied with the cheaper wood shoring _c b:, ':`. \11.. ch WML contends is allowed;and _ i'L-�C _) -it, ied with the cheaper wood,did it provide a level playing Iie IJ i Fic ,r mislead them with pre-bid Question and Answer 27 such VI, ha K. Dubrovski -ti. 2012 ct- _ c i rth h lorc. OCSD ccnnol reasonably or fairly answer these questions so as to 1: to WML. Balfour Beatty should be awarded the project '012 letter stated OCSD lacked the necessary information to t --i Ar. A J L u F-.i l.1 eJ .::'reaper shoring system in its bid for the above referenced ha iac. 12F I 1) c —c.uded it could not declare WML's bid non-responsive r' V I L - .-crowed documents,and could not"speculate"as to how V� VLF brli„_ca -1 ' L,_-cr iewing those documents. WML has since admitted it ,L,a=-i:LR J to ' n_ ma r in its October 11,2012 opposition to Balfour Beatty's --t. F _ -A I ., ithout its enclosures.) WML's opposition to the bid protest s hrt 'tS: F'J ;in:-a- :nJ. under California law,must be considered in evaluating the re,I- n-i,en-- I At AII_ - iic. It is now undisputed that WML's bid substituted t-n ',:-.ri - _-n_1 t -, permanent steel shoring was required. As such,even f Ct �_. » Jocumentation, WML's bid is non-responsive and must be I) d t,I J r, the project to Balfour Beatty as the lowest responsive FJ, 1 FiJ -i „ achieve a level playing field. t,-\'L L `..\ rv.:r. - The Bid Documents maounicdh Required Permanent Steel Shoring A `.IL admits it bid the project using temporary wood shoring, but nonetheless ont-rd? its hid is responsive because the bid documents did not call for permanent Ilt- .rr_❑non.- I, nx-iless. OCSD clearly called for permanent shoring to . > :ti i:, I existing facility. Those areas and the relevant bid xn:- A cet:-_.J Fe' . iS<ations 01772 And 02361,Plan Sheets C1-7006 �'-1001,And Question And Answer 27 Clearly \1[ut_9[ttc;1 Bidders Submit Bids Covering Permanent Steel Shoring t h:ee e1'<_t:ne tr.r.ores on the project are decades old and easily damaged,such :i.ct OCSI7 rar.Ccd blcLr, :,, protect those structures with permanent steel shoring. The :r:atres -ra. �hich was built in 1964 and is not supported on piles; (2) T-i:sh :rie:,_ina alter -if cent pipe("TFE Pipe');and(3) Digesters 9 and 10,which :.:e h.c:t ir. 1979 and arc also not supported on piles. yI, NI-I>11K o-hro,. _ OCto_"er -: . "I— � u_ncI l - anJ lLe TI'E Pipe are set forth in Plan Sheet Cl-7006. (See Tab 3.) Tis dr.��iag ircl-:a , Notes � & 6 which directs bidders to protect those components I%:itit Shari^ pursaant to Specification 01772,PROTECTION OF ADJACENT COAS110 CTION: 5. P TCT NWrFl t] ALONG In"Mc IF Tl. 5EE SPCCtrI rM SECM 0172Z MOTEM N RO CWT cDNs. enp1 FM RLW.N 04n MO iMAMM c£ SlMPo .. G. PROxG! 1XE ]S ReP ITS RK MMO In EME tu,GIH. SG SP"cOfiCAnM SECI.M 00"S RVCnOtM1 FM iSpI MTS ANO vxnnoN a ss�n,Na _1 tLi-J :°..eJ'[_ per:n zr ent protection is around Digesters 9 and 10,and is set forth r,n P dI h— �'_'.�.^ _ 1 ea I ab 4.) It details Tunnel 29 which is to be constructed �e ut at I) o,ror y .,� hat drawing also includes a note instructing bidders to ra%1Je pa;Cs:t e:is r.n> I _,ccordance with the PROTECTION OF ADJACENT COAST RLCIION sic,ulcsi on. `rcc'hc :ion I PROTECTION OF ADJACENT CONSTRUCTION,is en c , ,I t 1 a h g I' i:-c'. separated subsections concerning each of the three above =si%J ti I cu I-a, L'I �u Psection requires the areas be protected by shoring that is to he left in Eha i z.. t-- s-,_ring is permanent).' OCSD clearly stated its reasons for I e,..a11: _ P- r-❑era 1h I I ithin Specification 01722. With respect to Tunnel 17, I 1) 1,d1 -i Jai, : .n nine 1 'nel was 58 years old and instructed bidders to"use caution J nr'::_ . I , .:;:iI,ii Ie I :des to avoid damage to Tunnel 17." (Tab 5,section 3.4 B _ `.t`th r.,;;c , l trn,129 and Digesters 9 and 10,OCSD stated,"The District is o: n -1 -c a^-ojt potential d:c:rage to the digesters." (Tab 5,section 3.4 (D)(1).) ':? S'Je the above desc-i red drawings and Specification 01722 identify where and ca panmrnt shori:_� I,as required, Specification 02361, STEEL SHEET PILING _zF 1at,. ac tS; tape of permanent shoring to be installed. Specification eta.. -:' [l 1 1—Ph: 1 er . , ,_r.l% materials and installation of permanent hot-rolled h, l-_ ir,L� edandleftin Platte as part of the steel sheet piling 1e t c I._ J laic,—thc Shoring system installed parallel to Tunnel 17 shall be left in place." u. I _:s I I- ,;tem protecting TFE Pipe"shall be left in place." Section 3.4(D$3) _,.:"'I nc shorn_ ..--ern installed along Tunnel 29 shall be left in place"to protect Digesters 9 and to_ VL. Acr1-S.t ti. ) hr, r s3! �JJLr i I the building basement and tunnels and as I _ ti r. _ it Ior pipelines and existing structures as indicated on the Dr,ii_- _ _ ,.. emphasis added.) Specification 02361 expressly applies to [I '_< I:r protect"tunnels,""pipelines"and"existing structures.- It that protects Tunnel 17,the TFE Pipes,and Digesters 9 r.J I ter. s I_,itczr hie I_,aen uncertain whether the steel sheet shoring in i i ' I I;, Installed to protect Tunnel 17,the TFE Pipes and Digesters n� I I D it, .eI Question 27 eliminated all uncertainty. It very clearly stated Saelt tle_=ian �. ,,,.1 iJen Clie� the type of shoring to be installed in those areas—"STEEL Tab 7.) ern-:mar- �r.:•.cines C1-7006 and S24001,Specifications 01722 and 03361, ,.ni (�C• e- to Q r c st'on 27,consistently and clearly require permanent steel ,h=. rtae to protect T urmel 17,the TFE pipes,and Digesters 9 and 10. B. WML's Contention That Steel Shorin_ Was Not Required Is Meritless VA"V1T_ contends O( SF) did not require permanent shoring because the general ..uIt: �[,,� t'e_-i nr_ ]Li-,s the contractor to remove all temporary wood shoring p❑, e, I_aa _,r__anent is meridess because the project requires both naoran ors Teens::pt sharing. The fact that the general earthwork specification rc. .:i1- _ n i, }-sl -ii._ t,, be removed does not negate the requirement to install norm.neptd r.n_ , aI t—t-he above described areas. In other words,the earthwork _ za f cation does no ,a:IT I, kith or undermine the steel shoring requirements to protect a'.ng structures. V oreocer. ,ar I General earthwork specification conflicted with the steel t • ocld rot trump the specific drawings,specifications,and �LKC1,C JI_J- I), err.hicl'. a�pressly call for permanent steel shoring. (Code Civ.Proe., r 1; 1,_elf, , l-,tnrequirementsttumpgeneralspecifications].) Assuch, q \I L ._r t to i t :h_u the -,cncral earthwork specification negates the steel shoring It) �!.c :, :_n.-,t tl"\ti argues that even if steel shoring were required in the `Ac endum 3 changed the shoring to temporary wood \k. A;a;:,ha :�. lluh:ocslC Oatobz- ;i7- �L1, inc rcrlui:cr, nt that a concrete wall be poured against the shoring in I _n i, -. - Ch: s_u re :, is,, ,cnhoul merit. First,Addendum 3 affected just one of :h� thr.�.� , :_a= read-ir._ ,t,,1shoring—Tunnell7. Modification of one area certainly J I J :"r. �_u_-iiru_ th� t--. shoring requirement in the other two. Second, and more r,-c 1,n_ \-3encuci " I2eCt'sally left in the requirement that the Tunnel 17 shoring n­ -_ "e'1 i, I see " I-et- 5, section 3.4(13)(3).) In other words,the removal of the regcec_tan: to Cocr the mall against the shoring is irrelevant to whether steel shoring was u^.imarily, bocc e'R MU s arguments that steel shoring was not required are pa.cnt'p ta�sc. 3. WML Confirmed That Its Bid Was Noon-Responsive In Its Onoosition To Balfour Beatty's Protest OCSD J<d _n its letter at Tab 1 that it could not determine WML's bid to .t : ing on the escrow documents. The conclusion is based on Ir. n:t __i th� earn .t dtc.:ments cannot be considered because they are"information r_ ec o.11>iJe i ilia h:.l.i i:: process,"which the Court in D.H. Williams Construction ics l_ rt of t're responsiveness inquiry. (SeeD.H Williams Const_, Inc. v. " ;>r ,) ,,. i_007) 146Cal.AppAth757, 764 [generally issues requiring .�,-i_ 't O LA, t e t'riding process fall under the"responsibility"requirement, I- r. mthatthe escrow documents may not be considered,OCSD •.i r.>t nJ a .A v h J ;, non-responsive because WML admitted in its opposition R d. , r �3 . -t Pr c,t h tits bid is based on temporary wood shoring. (See Tab 2.) -at :1' ,i i i "_ F 'r J to OCSD within"rime bidding process." Accordingly, ' r it 1 1" c-oice of shoring system can and must be considered by �� 1J <_r h. l\ - JCng substitution is an"undisputed fact"which directly -_-�r. the 1,, :nsi.un­­c'ts bid. (D.H Williams Const., Inc. v. Clovis Unified i ) I ..I .',pp.4th at p.764 r'In the usual case,the determination that FIJI i> ca � i� i _�[ eased on disputed facts."].) U \11 z_n i -."I cro :t did not promise to do what the bidding instructions _pi .> .rxh. us hu is non-responsive. (Valley Crest Landscape, Inc. v_ City 2.__.. a-u, J �_. App.4th 1432, 1438.) \1,. Satasha K. Dubrovski OatoJer 30,2012 'a-, 6of7 4. WML's Bid Defect May Not Be Waived W',11 cites Kmtica Lizsiness Machines USA., Inc. v. Regents ofUniversityof I a S! 7 ( . _1� p3d 449,in support of its request that OCSD waive its bid '1­1 ITI n wz n=_'J I MM I. In fact, WML's bid deviation was anything but n, i,:q u<r tip_. _isr i, ant be waived. California law precludes waiver of any bid ._t i, ,F t <rJ J i c _tI ected the bid price or given the bidder an advantage or 1,t fi :rt _'._r-..oc t�, nLe-i:ors. (valley Crest Landscape, Inc. v. City Council, supra, L.Jih _n c. 1-4_ \':ML's shoring substitution did both. WML does not i tc a 1 <,stem is cheaper than permanent steel. As such,the l tl-. <_ dl have affected WML's price and afforded WML an \\ %1I_ czni t this rule by contending the permanent shoring was required is , i stt rrt<. I ,- n_µtirc is whether the deviation could have affected price or :i oir_ nr benefit not allowed to the other bidders—the extent of ii 's irrelevant. tI- ii,� -in eWML's undisputed bid deviation based on WML's p -PiJ a r n I n,n= t�, i:i tI I the required shoring system. The advantage enjoyed by `1 ' ll i J n c i. ia lc reactively erased by WML's post-bid agreement. t:J s r. rrr d c_ir \c VI s bid day advantage precludes OCSD from waiving the o- 1 h: Proiect Avoids Claims And Litigation P3 ut :nJ A`, A11, framed the issues for OCSD: (1)did OCSD's bid documents i_ t:i rr =too. �L, i and(2)if not, did OCSD create an unleveled playing field by J i i \`. %1 I r,:r:netitors to believe steel shoring was required? As detailed above. the rs1'_r tc t h: tl_s: c aestion is yes—steel shoring was required and,as a result, the rm-. I ri i I I' . „ d to WML. If OCSD engineering now decides to accept xw,d =' nr_ry 'Li , _ii I.. unleveled the playing field by telling WML's competition that StecI s._nrir_ �::_> �CTIn ia1 I through the above-described plans and specifications and the :_nstter u , :.: eithercase, award to WML would be set aside via writ of �r,tchines USA. Inc. v. Regents of University of California, Ti,< s-tic: c..n a•,n a writ of mandate by rejecting all bids. (Kajima/Ray . .t/etropolitan Tramp. Authority(2000)23 CalAth 305, 315 ii'.ld ut has ab„) utc ui,cretion to reject all bids].) In addition,the District V< Aztz�1, 1, 1)-Ti—,6.i i i i],, t 1 1'-oj ect by more than$24 million due to price inflation by I r I I)istrict elects to re-bid,the District could broaden the tr, include"equal"suppliers. Balfour Beatty will to work � i h i h- I L,t l a ;1 t_ the i<Tid to identify the alternative products/suppliers that will 1, -- the I'i. i�a th- aving$20 million of District funds. Pursuant to Public air,r..o t <. i. r. '_ the District could accept a second round of bids for the u ,- _•.c-tising anew bid deadline. In other words, the District nu t -.,l -«ard the Project in under a month. - .. urti,_ 1z���.c5. . :actthat WML bid wood and not steel is undisputed. :,erform-any outside investigation or apply subtle judgment c �1<pu=-.1 ua> _u <i Je th_ bid process. The only issue is whether OCSD required steel I A' 'd con-responsive and must be rejected. If not, WML'sbid r�i ,. d also be the result of an unleveled playing field. If OCSD • i, _i:,e . i ,n I Ten it should reject all and re-bid to allow a level playing Iicld. The prc , -5w he awarded to Balfour Beatty as the lowest responsive bidder, or put out for rc--i i. Very truly yours, 1'. Rail Partner of MARKS,FINCH, THORNTON&BAIRD, LLP F'&P 6..1:-1 41 tlar_� t o-:n=, �,n ut'.on District v tr ?1 h' , I R !login, Legal Counsel \I t 1 i-n . Assistant General Manager& Director of Engineering I_. I I n It- i tieneral Manager B_I fntc 3 c `.,E"-t-ceture,Inc. -Fairfield, CA(via e-mail only) \Ir. i :,it Hates,Vice President Western Region VI_. I)-in It -zner, Chief Estimator DOWLING I AARON I N C O R P O R A T E D ATTORNEYS AND COUNSELORS AT LAW RGPONk,dhl` m RlYtliba Re9W.CA 9371I October 11, 2012 R 5`AA32tW F.SW.[RASW WRIIfRs F-MAIL: File No. 14946-000 WCHAEL D.DOWLING VIA E-MAIL(construction@ocsd.com) RICHARD M.AARON DAWDI.VJUTACHISST .B AND FACSIMILE (714)593-7779 DAMID T WER A.BROWN MICHAEL 1.HOGAN DANIELK-KDNGENSERGER IARRY S.UNDENAU Ms.Natasha K. Dubrovski RONALD A.HENDERSON DONALD R FISCHBACH Principal Contracts Administrator RU4ELL E HURLEY PHIDP B.NIRD Orange County Sanitation District MN D.MCGEEE III 10844 Ellis Avenue KU0"GRAM AR50N Fountain Valley,California 92708 IUAOMY J. " JOHN C GANAHL KNRON I.KV$$EN JEFFREY P.DAVIS Re: Entity: Orange County Sanitation District MARK D.KRUIHERS LEMN W.BURNSIDE Project: Sludge Dewatering and Odor Control at Plant No. 1 DAVIDD.SCHNEIDER LYNNE MAGER BROWN Project No.: Pl-101 DA ID 0.FL WA°EN Opposition to Bid Protest Submitted by Balfour Beatty STEPHANIEH. CHMS7RE.SEYMOIR InfrastructureF Inc. NATHAN W.POWELL GREGORY N. N PADLM PARVANIANANIgN Dear: Ms.Dubrovski M.MAMK G.ANDEW 4 On October 1, 2012, the Orange Count Sanitation District(hereinafter, MICAH KON MAUHfw 1.BESMEF. gY ICAH K.HIM M the "District") sent an Award Recommendation Notice that W. M. Lyles MADHEW R.DILDNE Company (hereinafter, "Lyles") was the lowest responsive, responsible bidder MARK I.GLEASON \�� Y 1p IAREDC.MARSHALL on the Orange County Sanitation District Sludge Dewatering and Odor Control WEEK W.PENDERGRASS at Plant No. 1 project(hereinafter,the"Project"). SIEPHEN M.BLUMBERG NICKO f.1J.DISL In a misguided effort to derail the proper award of the Project to Lyles, NMES F.TJ.DIBIR D^' p 11 .i Y MYRUL M.VARrgeeDSAO. AN Balfour Beatty Infrastructure, Inc. (hereinafter, "Balfour")has submitted a Bid MYBDNMOAKASE HARD I "B`""Ll"'MIERWDOD!AMPS Protest. Balfour's Bid Protest contests the District's intent to award the Project . to Lyles asserting that Lyles' bid was not responsive to the Invitation for Bids. Balfour's Bid Protest is without merit. This office has been engaged by Lyles to oppose and defend against Balfour's protest. AULAus-- i� I. LYLES' BID IS RESPONSIVE. A public entity is requited to put significant contracts out for (19M-MILMJ competitive bidding and to award the contract to the lowest responsive, I�CtlJmM,Aw,x sr.,,00 responsible bidder. (See MCM Construction, Inc. v. City and County of San R�„"�,, CA`J A Francisco (1998) 66 Cal. App. 4th 359, 368; Ghiloui Construction Co. v. City R "I.71A2C05 of Richmond(1996) 45 Cal. App. 4th 897, 904-905; and Pub. Contract Code § ..'W' 20162.) A bidder is responsible if it can perform the contract as promised. VkoY,.CA 9JLil P:SSR-739-TJW R W-739 7133 Ms.Natasha K. Dubrovski October 11, 2012 Page 2 (Id) A bid is responsive if it promises to do what the bidding instructions require. (Id.) In its Bid Protest, Balfour asserts that Lyles' bid is non-responsive as it offers to install a temporary wooden shoring system rather than a permanent steel shoring system. In its protest, Balfour takes the position that the entire shoring system required by the Invitation to Bid was to be permanent and consist of steel sheet piling. Balfour is incorrect. To the contrary, most, if not all, of the shoring system for the Project is to be temporary and is not required to be constructed of steel sheet piling. Specification Section 02200"Earthwork"makes the nature of the shoring system clear at: Part 1.6.A.: "General: The CONTRACTOR shall furnish all labor, equipment, and materials to construct, install, and remove the entire shoring system including removal of lagging, soldier beams, bracing, and detensioning of tiebacks." (Emphasis added.) Par 1.1: The Requirement: with regard to the earthwork: "...the furnishing, placing, and removing of sheeting, shoring and bracing ..."(Emphasis added.) Part 1.6.E: "Shoring Beams/Piles: The CONTRACTOR shall coordinate the methods of installation and removal of shoring beams/piles with the requirements for noise and vibration control listed elsewhere in these specifications. Maximum noise and vibration levels shall not be exceeded by the installation and removal methods." (Emphasis added.) Par 1.6.G: "Shoring Removal: Shoring shall be removed cautiously such that no damage of any type is caused to existing or newly constructed facilities." (Emphasis added.) (See enclosed at Exhibit A.) Not only does Section 02200 specify that the general nature of the shoring system is to be temporary,but it acknowledges the acceptable use of a beam and lagging wooden system. Further, Addendum No. 3 to Specification Section 01722 "Protection of Adjacent Construction" strikes out the language requiring the north and west walls of Tunnel 17 (at Part 3A.B) and the Trickling Filter Effluent Pipeline (at Part 3A.C) to be "poured against the shoring".' (See enclosed at Exhibit B.) If the walls were to be poured against the shoring, obviously the intent would be for the shoring to be permanent. Conversely, the fact that the walls are not to be poured against the shoring shows the intent of the District that the shoring be removed,which is consistent with Section 02200. This point is also addressed in m answer given by the District to a question from a bidding contractor, see enclosed Exhibit E,answer to Question 28(last page of exhibit). Ms.Natasha K. Dubrovski October 11, 2012 Page 3 The above notwithstanding, it is arguable that Specification Section 01722, Parts 3.4.B, C and D require a portion of the overall shoring system to be permanent(portions of Tunnel 17,the Trickling Filter Effluent Pipeline, and Tunnel 29 between Digester Nos. 9 and 10). (See enclosed Exhibit B.) However, these sections amount to only about 1,500 sq. ft. (Tunnel 29 between Digester Nos. 9 and 10) and 10,500 sq. ft. (Tunnel 17 and the TFE Pipeline), respectively, of the total of approximately 41,000 sq. ft. of shoring required for the Project. In no way do these portions transform the general nature of the shoring system provided by Section 02200. Nor does Section 01722 require the use of steel sheets or reference Specification Section 02361, which contains specs for steel sheet piling. Nonetheless, if the District desires these specific portions to be permanent and/or steel, the work can be performed by Lyles' listed shoring subcontractor, Schnabel Foundation Company (hereinafter, "Schnabel"). Contrary to Balfour's assertion in its Bid Protest, Schnabel does install steel shoring systems. (See enclosed Exhibit C.) Any permanent shoring system required for the project can and will be designed and installed by Schnable using materials acceptable to the District at no extra cost to the District. It should also be noted that all 3 of the bidders that listed shoring subcontractors listed Schnabel as the shoring subcontractor; and provided subcontractors bids to the District from Schnabel in roughly the same amount as Lyles. (See Balfour's Bid Protest, Tab 10.) The wide use of Schnabel by bidders is further evidence that Lyles' interpretation of the shoring system and materials for the Project is correct. Without question Lyles' bid is responsive to the District's Invitation to Bid. To the extent Lyles' bid contains any minor deviation from the Invitation to Bid, a public agency has wide discretion to waive inconsequential errors in a bid and can accept a bid that deviates from, but which substantially conforms to the call for bids. (See Konica Business Machs. U. S. A. v. Regents of Univ. of Cal (1998)206 Cal. App. 3d 449,454; and MCM, supra at 368) II. BALFOUR'S BID IS NON-RESPONSIVE. Balfour's Bid Protest operates as an 11 page admission that its bid is non-responsive. As demonstrated above, the Invitation for Bids called for a primarily removable shoring system. Balfour admits by way of its Bid Protest that it bid the Project for an entirely permanent shoring system, contrary to the Project specifications rendering its bid non-responsive. (See Konica, supra at 454.) 111. BALFOUR'S BID PROTEST IS UNPERSUASIVE. The documentation and information submitted by Balfour in support of its Bid Protest is insufficient to show Lyles' bid is non-responsive. A. The Project and Bid Documents(Balfour's Bid Protest,Tabs 1-4). As shown above, Lyles' interpretation of the shoring system required for the Project is correct. Thus, Lyles' bid does not deviate from the bid documents. To the extent Balfour's Bid Protest alleges Lyles failed to escrow all necessary documents with the District, the allegation is Ms.Natasha K. Dubrovski October 11,2012 Page 4 false. The District can confirm that all necessary documents were escrowed, including documents from Schnabel. B. Bid Document,Section 02361 (Balfour's Bid Protest,Tab 6). Specification Section 02361 "Steel Sheet Piling" is a Red Herring. Section 02361 provides specifications for the use of steel sheet piling on the Project. (See enclosed Exhibit D.) However, the Bid Documents themselves do not require the use of steel sheet piling. Additionally, Part 2.1.B of Section 02361 refers to Project "Drawings" where use of the steel sheet piling is to be indicated. However, the reference is not reflected on any of the actual Project drawings. Balfour's Bid Protest argues that Notes 5 and 6 of Drawing C1-7006 (discussed in greater detail below) require materials specified in Section 02361. However, CI- 7006 makes no reference to Section 02361. (See enclosed Exhibit F.) Instead, C1-7006 makes reference to Section 01722, which makes no reference to Section 02361 and does not specify materials to be used by the contractor. Presumably, Section 02361 was included as an option should the contractor choose to install steel sheet piling rather than beam and lagging shoring. To the extent Sections 02200 and 01722 conflict with Section 02361,the District's intent that the bidding contractor have the freedom to design an appropriate shoring system on its own is evident in its responses to bidder submitted questions, wherein it stated multiple times, "Contractor is responsible for designing a shoring system." (See enclosed Exhibit E, answers to questions 2, 7, 8, 16 and 27.) C. Drawing C1-7006(Balfour's Bid Protest,Tab 5). As stated above, Balfour's Bid Protest references Drawing C1-7006 Notes 5 and 6 as support for its position that the District intended the shoring system to be permanent and consist of the steel sheet piling specified in Section 02361. Unfortunately for Balfour, Drawing C1-7006 does nothing of the sort. (See enclosed Exhibit F.) CI-7006 does not require the shoring to be permanent, does not require the shoring to be constructed with steel sheet piling, and refers the bidding contractor to Section 01722, not Section 02361 for specifications. As addressed above, Section 01722 does not require permanent shoring and does not specify the shoring be steel sheet piling. Even if C1-7006 required the use of steel sheets (which it clearly does not), the section covered by Notes 5 and 6 (Section 01722) only represents the approximately 12,000 sq. ft. of shoring which may be permanent described above, not the entire Project Thus, C1-7006 does not support Balfour's position. D. Bidder Question No.27 (Balfour's Bid Protest,Tab 7) Bidder Question No. 27 asks the District to clarify the situation along Tunnel 17 and the 72-inch Trickling Filter Effluent Pipeline. The response was, in essence, to bid as specified, without further clarification. Specifically, the District pointed the contractor to Section 01722 and Section 02361. As discussed above, Section 01722 cites the specifications in 02200, allowing beams and lagging, while Section 02361 provides specs for steel sheets. Again, presumably the District is giving the bidding contractor leeway to design the details of the shoring system. Ms.Natasha K. Dubrovski October 11, 2012 Page 5 IV. CONCLUSION. The Invitation to Bid did not require Lyles to bid a permanent steel sheet piling shoring system. Lyles did not fail to escrow any of its Bid Documents. And if any portion of the shoring requires permanent steel sheet piling, Lyles can perform without gaining any improper advantage over other bidders. In conclusion, Lyles is the lowest responsive, responsible bidder. This fact has already been recognized by the District and the Project should proceed with Lyles as awarded. Very truly yours, JJ DOWLINGAARONIN ORPPIRATED By: Steven D. McGee,Esq. G. Andrew Slater,Esq. SDM/GAS:nmj Enclosures cc: Mr. David Dawson Mr. Rick Amigh Ms. Andrea Oliver P. Randolph Finch Jr. Orange County Sanitation District Bradley R. Hogin, Legal Counsel Jim Herberg—Assistant General Manager&Director of Engineering Jim Ruth, General Manager 1 G946-000\OIo79126.DOC. Serving Orange County Sanitation District 10844 Ellis Avenue,Fountain Valley,CA 92708 Anahern (714)962-2411 wVw.ocsewers.com Brea Buena Park October 15, 2012 Cypress Fountain Valley Fullerton Randolph Finch Jr. MARKS, FINCH, THORNTON & BAIRD Garden Grov,, 4747 Executive Drive, Suite 700 Huntington Sea& San Diego, CA 92121 Irvine SUBJECT: OCSD Response to Balfour Beatty Infrastructure, Inc. Bid Protest and Supplemental Bid Protest La Habra Re: Project No. 131-101, Sludge Dewatering and Odor Control La Palrna at Plant No. 1 Los Alannitoo This letter responds to the Bid Protest filed by Balfour Beatty Infrastructure (Balfour Orange Beatty) dated October 5, 2012, as well as the Supplemental Bid Protest submitted on October 12, 2012, protesting the Orange County Sanitation District's (OCSD) Placentia Notice of Intent to Award dated October 1, 2012. Santa Ana In summary, Balfour Beatty claims that the lowest bidder, W.M. Lyles Company SealBeach (Lyles), presented a non-responsive bid because Lyles offered to install a temporary Stanton wood shoring system in lieu of a permanent steel shoring system, which you assert was required in the bid specifications. In order to reach a determination that Lyles is Tustin non-responsive, Balfour Beatty suggests that OCSD (i) review the escrowed bid Villa Park documents in order to verify that a listed subcontractor, Schnabel Foundation Company (Schnable), proposed wood shoring work as opposed to steel; and (ii) Yorba Linda conclude, based on the pre-bid questions submitted by Lyles, that Lyles' bid in fact County of Orange did not conform to the bid specifications. Cases messa As you are probably aware, "a bid is responsive if it promises to do what the bidding Sanitaryinstructions require." (Taylor Bus Service, Inc. v. San Diego Bd. of Education (1987) 195 Cal.App.3d 1331, 1341.) Generally, whether a bid is responsive can be Sanitary District determined from the face of the bid based on a set of requirements established by a public agency without outside investigation or information. (Id. at 1341-1342.) As Water you stated in the bid protest, "California law requires public entities to enforce and follow the rules and procedures set forth in their bid documents." (Pozar v. Department of Transportation (1983) 145 Cal.App.3d 269.) OCSD has considered Balfour Beatty's Bid Protest, in which all arguments lead to the same request—that OCSD review the escrowed bid documents to find that Lyles is non-responsive. Pursuant to the Special Provisions, SP-13, entitled "Escrow of Bid Documents", subsection C, (Bid Protest Tab 4, p.6) provides: "Purpose: Escrow Bid Documents will be used to assist in the negotiation of price adjustments and Change Orders and in the F�, a settlement of disputes, Claims and other controversies. They will not be used for ore-award evaluation of the CONTRACTOR's anticipated methods of construction or to assess the CONTRACTOR's qualifications for performing the Work." We protect public health and the environment by providing effective wastewater collection, treatment, and recyling. „yy SAND � i o� Randolph Finch Jr. Page 2 October 15, 2012 Contrary to Balfour Beatty's suggestion, SP-13 expressly restricts OCSD from using the Escrow Bid Documents for the purpose of the pre-award evaluation. OCSD is required to follow the procedures set forth in the Public Contracts Code, OCSD Resolution 07-04, and the bid documents. Furthermore, Balfour Beatty argues that the pre-bid questions submitted by Lyles are conclusive proof that Lyles' bid deviated from OCSD's instructions. OCSD cannot reach that conclusion. OCSD has carefully reviewed the bid submitted by Lyles consistent with the law and OCSD's procedures, and has determined that the bid submitted by Lyles is responsive to what the bidding instructions require. Lyles did not propose a wood shoring system in its bid proposal, and has signed the acknowledgement and certification that it will construct the Project consistent with the bid plans and specifications. OCSD will not engage in speculation concerning the anticipated methods of construction of the shoring system when the bid submitted by Lyles is responsive to what was requested in the bid documents. By merely listing Schnabel as a subcontractor and by submitting a pre-bid question, OCSD is unable to conclude that Lyles is non-responsive. Therefore, OCSD has determined that the bid submitted by Lyles is responsive to the bid requirements, and that Lyles is responsible, that is, Lyles has the fitness, quality, and capacity to perform the proposed work satisfactorily. OCSD has evaluated and considered the Balfour Beatty's Bid Protest and Supplemental Bid Protest and arguments raised therein protesting award of Project No. P1-101 to Lyles. Based on the evaluation and conclusions as described herein, OCSD hereby denies Balfour Beatty's Bid Protest, and will proceed to recommend award of the Project No. P1-101 to the lowest responsive and responsible Bidder, Lyles, at the Board of Directors meeting on November 28, 2012. Natasha K. Dubrovski Principal Contracts Administrator NKD:MC:ms EDMS: 003964609 cc: Contract File 7.4.4e Serving Orange County Sanitation District 10844 Ellis Avenue,Fountain Valle),CA92708 Anaheim (7141962-2411Buena Park vrvmacsewets.mm Brea October 31, 2012 cypressu Via Fax: 858-737-3101, Fountain Valley Email: nhorn@mftb.com, Fullerton & Certified Mail Garden Grove P. Randolph Finch, Jr. MARKS, FINCH, THORNTON & BAIRD Hunfington Beach 4747 Executive Drive, Suite 700 Irvine San Diego, CA 92121 La Hatim SUBJECT: Response to Balfour Beatty Infrastructure Supplemental Bid Protest La Palma Re: Project No. P7-101, Sludge Dewatering and Odor Control Los Alamitos at Plant No. 1 Newport Beach Orangei! The Orange County Sanitation District(OCSD) received and reviewed the Placentia Supplemental Bid Protest letter dated October 30, 2012 submitted by Balfour Beatty Infrastructure, Inc. OCSD has evaluated and considered the arguments SantoAna and issues raised in Balfour Beatty's Bid Protest and Supplemental Bid Protest Seal Beach referenced above protesting the award of Project No. P1-101 to W.M. Lyles claiming that W.M. Lyles' bid was nonresponsive. Based on OCSD's evaluation Stanton of the facts and arguments presented, OCSD's position remains unchanged from Tustin its letter of October 15, 2012. OCSD will proceed to recommend award of the Project No. P1-101 to the lowest responsive and responsible Bidder, W.M. Lyles, Villa Park at the Board of Directors meeting on November 28, 2012. Yortra Linda Costa Mesa Sanitary District Natasha K. Dubrovski Principal Contracts Administrator Midway City Sanitary DWIrict NKD:ms DistrictIrvine : nch EDM6: 003966202 Water USPS Certified Mail Tracking Number: 7005 0390 0004 8201 6548 cc: Contract File 7.4.4e �NtV SANnNr N •N 4 f bhp ME HJP We protect public health and the environment by providing effective wastewater collection, treatment,and recyling. ®MOYNO Always the Right Solution" August 23, 2012 Attn: Ms. Natasha Dubrovski, Principal Contract Administrator Orange County Sanitation District 10844 Ellis Ave. Fountain Valley,CA 92708 Re: OCSD project P1-101,Cake pumps and sludge pumps Dear Ms. Dubrovski, Moyno has been working with the engineer, HDR, on this project for several years. During this time we have helped HDR with design criteria for pump setup, running speeds, and with empirical data on piping pressure losses. While the spec was essentially changed to "sole-source"excluding Moyno, I'd like to discuss a few pertinent Items: • Moyno is fully capable of providing cake pumps that can operate under the conditions given in the spec. Currently the spec is the proprietary design of another manufacturer, thus it contains some features different from our cake pump products. We are providing equipment that our extensive experience shows will work in demanding cake applications such as these. • Moyno data was used in the design of the OCSD cake system, even though Moyno is no longer listed as a bidder. • Moyno has a vast array of cake pump installations successfully operating throughout the United States and other countries since the 1950's, and has valuable experience working with most major US municipalities. This real world experience could be of great benefit to OCSD as we work toward the successful completion of this Important project. Although we could not provide the consultant with a Cake pump installation of the same or greater horsepower, we feel we have demonstrated our capability to fully perform In cake applications for all the previous major municipal projects with a great degree of success. Therefore, we would ask to not be excluded from providing an offering on this project solely because of not having a similar horsepower unit. To the best of our knowledge, our competitor offered a reference for a private company, Entertech, whom accepts sludge from OCSD, and LA County. • We respectfully object to the way the bid process excluded Moyno from being able to offer competitive pricing. The competitor, whom was sole-sourced in spec Section 11250 - Cake pumps, packaged the Cake pumps with Section 11309 - Sludge pumps for which Moyno was a named supplier. Moyno was thereby prevented from offering a competitive bid that could be considered on Its own merit. • Our competitor offered sole-source pricing far exceeding Moyno's normal market pricing on comparable equipment. We feel Orange County Sanitation District did not benefit from competitive market pricing on the project. The final bid price being several Million dollars over the engineering budget price, we strongly urge OCSD to re-evaluate this bid, both to provide Moyno an honest opportunity to compete and to secure for yourselves a competitive and successful project. We are available to meet with the District regarding this bid and would like to be considered. Moyno has an extensive history and presence in the OCSD plant with several long term installations. We would like very much to be given a chance to compete and be of service to the District. Regards Mark A. Yingling Municipal Sales Manager Moyno Inc., A Unit of Robbins and Myers, Inc. PHONE: (937)-327-3017 FAX: (937)-327-3177 mark.yi nali naCa)robn.com www.moyno.com Servin Orange County Sanitation District - 10a44 Ellis Avenue,Fountain Valley,CA 92708 Anaheim (714)962-2411Buena Park www.ocsewerscom October 4, 2012 Via Fax: (937) 327-3177 Fountain Valley & mark.vinclingarobn.com Fullerton Mark A, Yingling GroveGarden Moyno Inc., A Unit of Robbins and Myers, Inc. 1895 W. Jefferson Huntington Beach Springfield, OH 45506 La Habra SUBJECT: Response to Moyno's Letter of August 23, 2012 Le Palma Re: Project No. P1-101, Sludge Dewatering and Odor Control at Plant No. 1 Newport Beach Orange County Sanitation District (OCSD) received your letter dated August 23, Orange 2012 regarding Project P1-101 ("Project"). Placentia f On January 25, 2012, OCSD's Board of Directors adopted Resolution No. 12-01 Santa Ana making findings pursuant to Public Contract Code Section 3400 in support of the SealBeach Sole Source of cake pumps and directing that the sludge cake pumps manufactured by Seepex meeting OCSD's needs be specified by name in the Invitation for Bids for Stanton the Project. A copy of OCSD's Resolution 12-01 is included for your reference. The Tustin Agenda Report and draft Resolution 12.01 was published and made available for viewing prior to the above referenced Board meeting in accordance with OCSD's Mile Park policies and procedures and applicable laws and regulations. Yortha Linda Consistent with Resolution No. 12-01, the Invitation for Bids listed Seepex by name County of orange for the sludge cake pumps. Pursuant to the Instructions to Bidders, Section IB-30, Costa Mesa solicitation protests must be submitted no later than 10 days after the First Sanitary District Advertisement. Your request for consideration is untimely. We appreciate your input and value our relationship. Thank you for your Sanitary District communication and we look forward to working with your company in the future. Invine Ranch Water District 4;e t'— Nat sha K. Dubrovski Principal Contracts Administrator O++VV SRXltq roy ` o NKD:MC:ms EDMS:003964176 Enclosures: OCSD Resolution 12-01 or i f� +' cc: A. Mirzy (Moyno, Inc.), Contract File 7.4.4e " rxr �°• we protect public health and the environment by providIng effective wastewater collection, treatment, and recylfng. PART A CONTRACT AGREEMENT C-CA-070612 TABLE OF CONTENTS CONTRACT AGREEMENT SECTION - 1 GENERAL CONDITIONS....................................................................1 SECTION -2 MATERIALS AND LABOR..................................................................4 SECTION -3 PROJECT............................................................................................5 SECTION -4 PLANS AND SPECIFICATONS..........................................................5 SECTION -5 TIME OF COMMENCEMENT AND COMPLETION............................5 SECTION -6 TIME IS OF THE ESSENCE...............................................................6 SECTION -7 EXCUSABLE DELAYS........................................................................6 SECTION -8 EXTRA WORK....................................................................................7 SECTION -9 CHANGES IN PROJECT....................................................................7 SECTION - 10 LIQUIDATED DAMAGES FOR DELAY ...............................................8 SECTION - 11 CONTRACT PRICE AND METHOD OF PAYMENT............................8 SECTION - 12 SUBSTITUTION OF SECURITIES IN LIEU OF RETENTION OF FUNDS ..............................................................................................10 SECTION - 13 COMPLETION....................................................................................10 SECTION - 14 CONTRACTOR'S EMPLOYEES COMPENSATION .........................11 SECTION - 15 SURETY BONDS...............................................................................13 SECTION - 16 INSURANCE......................................................................................14 SECTION - 17 RISK AND INDEMNIFICATION .........................................................15 SECTION - 18 TERMINATION...................................................................................16 SECTION - 19 WARRANTY.......................................................................................16 SECTION -20 ASSIGNMENT....................................................................................17 SECTION -21 RESOLUTION OF DISPUTES...........................................................17 SECTION -22 SAFETY& HEALTH...........................................................................17 SECTION -23 NOTICES ...........................................................................................18 C-CA-070612 CONTRACT AGREEMENT ORANGE COUNTY SANITATION DISTRICT PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 THIS AGREEMENT is made and entered into, to be effective, this October 24, 2012, by and between W.M. Lyles Company, hereinafter referred to as"CONTRACTOR" and the Orange County Sanitation District, hereinafter referred to as "OCSD". WITNESSETH That for and in consideration of the promises and agreements hereinafter made and exchanged, OCSD and CONTRACTOR agree as follows: SECTION— 1 GENERAL CONDITIONS CONTRACTOR certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the Work is to be performed have been thoroughly reviewed, and enters into this Contract based upon CONTRACTOR's investigation of all such matters and is in no way relying upon any opinions or representations of OCSD. It is agreed that this Contract represents the entire agreement. It is further agreed that the Contract Documents are each incorporated into this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its Subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the Work covered by this Contract. C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 1 of 19 A. Contract Documents Order of Precedence '.Contract Documents" refers to those documents identified in the definition of"Contract Documents" in the General Conditions - Definitions. 1. In the event of a conflict between one Contract Document and any of the other Contract Documents, the provisions in the document highest in precedence shall be controlling. The order of precedence of the Contract Documents is as follows: a. Supplemental Agreements, including, but not limited to, Pre-Selection Agreement assigned to and accepted by Contractor-the last in time being the first in precedence b. Addenda issued prior to opening of Bids-the last in time being the first in precedence C. Contract Agreement I. OCIP Insurance policies ii. Exhibit B iii. Exhibit C OCIP Insurance Manual iv. Exhibit D OCIP Safety Standards V. Other provisions of the Contract Agreement d. Permits and other regulatory requirements e. Special Provisions f. General Conditions (GC) g. Notice Inviting Bids and Instruction to Bidders h. Geotechnical Baseline Report (GBR), if attached as a Contract Document I. Plans and Specifications- in these documents the order of precedence shall be: I. Specifications (Divisions 01-17) ii. Plans C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 2 of 19 iii. General Requirements (GR) iv. Standard Drawings and Typical Details j. CONTRACTOR's Bid 2. In the event of a conflict between terms within an individual Contract Document, the conflict shall be resolved by applying the following principles as appears applicable: a. Figured dimensions on the Contract Documents shall govern. Dimensions not specified shall be as directed by the ENGINEER. Details not shown or specified shall be the same as similar parts that are shown or specified, or as directed. Full-size details shall take precedence over scale Drawings as to shape and details of construction. Specifications shall govern as to material and workmanship. b. The Contract Documents calling for the higher quality material or workmanship shall prevail. Materials or Work described in words, which so applied, have a well known technical or trade meaning shall be deemed to refer to such recognized standards. In the event of any discrepancy between any Drawings and the figures thereon, the figures shall be taken as correct. C. Scale Drawings, full-size details, and Specifications are intended to be fully complementary and to agree. Should any discrepancy between Contract Documents come to the CONTRACTOR's attention, or should an error occur in the efforts of others, which affect the Work, the CONTRACTOR shall notify the ENGINEER, in writing, at once. In the event any doubts or questions arise with respect to the true meaning of the Contract Documents, reference C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 3 of 19 shall be made to the ENGINEER whose written decision shall be final. If the CONTRACTOR proceeds with the Work affected without written instructions from the ENGINEER, the CONTRACTOR shall be fully responsible for any resultant damage or defect. d. Anything mentioned in the Specifications and not indicated in the Plans, or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to OCSD's ENGINEER, without whose decision CONTRACTOR shall not adjust said discrepancy save only at CONTRACTOR's own risk and expense. The decision of the ENGINEER shall be final. In all matters relating to the acceptability of material, machinery or plant equipment; classifications of material or Work; the proper execution, progress or sequence of the Work; and quantities interpretation of the Contract Documents, the decision of the ENGINEER shall be final and binding, and shall be a condition precedent to any payment under the Contract, unless otherwise ordered by the Board of Directors. B. Definitions Capitalized terms used in this Contract are defined in the General Conditions, Definitions. Additional terms may be defined in the Special Provisions. SECTION-2 MATERIALS AND LABOR CONTRACTOR shall furnish, under the conditions expressed in the Plans and Specifications, at CONTRACTOR'S own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by OCSD, to construct and complete the Project, in good workmanlike and substantial order. If CONTRACTOR fails to pay for labor or C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 4 of 19 materials when due, OCSD may settle such claims by making demand upon the Surety to this Contract. In the event of the failure or refusal of the Surety to satisfy said claims, OCSD may settle them directly and deduct the amount of payments from the Contract Price and any amounts due to CONTRACTOR. In the event OCSD receives a stop payment notice from any laborer or material supplier alleging non-payment by CONTRACTOR, OCSD shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees. SECTION—3 PROJECT The Project is described as: PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 SECTION-4 PLANS AND SPECIFICATONS The Work to be done is shown in a set of Plans and Specifications entitled: PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 Said Plans and Specifications and any revision, amendments and addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. SECTION — 5 TIME OF COMMENCEMENT AND COMPLETION CONTRACTOR agrees to commence the Project within 15 calendar days from the date set forth in the "Notice to Proceed"sent by OCSD, unless otherwise specified therein and shall diligently prosecute the Work to completion within 1425 calendar days from the date of the"Notice to Proceed" issued by OCSD, excluding delays caused or authorized by OCSD as set forth in C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 5 of 19 Sections 7, 8, and 9 hereof, and applicable provisions in the General Conditions. The time for completion includes 30 calendar days determined by OCSD likely to be inclement weather when CONTRACTOR will be unable to work. In addition, CONTRACTOR shall accomplish such milestones within the periods of performance set forth in Appendix A of the Special Provisions entitled "Work Completion Schedule." SECTION—6 TIME IS OF THE ESSENCE Time is of the essence of this Contract. As required by the Contract Documents, CONTRACTOR shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of CONTRACTOR's Work in conformance with an approved construction progress schedule. CONTRACTOR shall coordinate the Work covered by this Contract with that of all other contractors, subcontractors and of OCSD, in a manner that will facilitate the efficient completion of the entire Work and accomplish the required milestone(s), if any, by the applicable deadline(s) in accordance with Section 5 herein. OCSD shall have the right to assert complete control of the premises on which the Work is to be performed and shall have the right to decide the time or order in which the various portions of the Work shall be installed or the priority of the work of subcontractors, and, in general, all matters representing the timely and orderly conduct of the Work of CONTRACTOR on the premises. SECTION—7 EXCUSABLE DELAYS CONTRACTOR shall only be excused for any delay in the prosecution or completion of the Project as specifically provided in General Conditions, "Extensions for Delay", and the General Requirements, "By CONTRACTOR or Others- Unknown Utilities during Contract Work". Extensions of time and extra compensation arising from such excusable delays will be C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 6 of 19 determined in accordance with the General Conditions, "Extension of Time for Delay"and "Contract Price Adjustments and Payments", and extensions of time and extra compensation as a result of incurring undisclosed utilities will be determined in accordance with General Requirements, "By CONTRACTOR or Others- Unknown Utilities during Contract Work". OCSD's decision will be conclusive on all parties to this Contract. SECTION—8 EXTRA WORK The Contract Price as set forth in Section 11, includes compensation for all Work performed by CONTRACTOR, unless CONTRACTOR obtains a Change Order signed by a designated representative of OCSD specifying the exact nature of the Extra Work and the amount of extra compensation to be paid all as more particularly set forth in Section 9 hereof and the General Conditions, "Request for Change (Changes at CONTRACTOR's Request)", "OWNER Initiated Changes", and "Contract Price Adjustments and Payments". In the event a Change Order is issued by OCSD pursuant to the Contract Documents, OCSD shall extend the time fixed in Section 5 for completion of the Project by the number of days, if any, reasonably required for CONTRACTOR to perform the Extra Work, as determined by OCSD's ENGINEER. The decision of the ENGINEER shall be final. SECTION-9 CHANGES IN PROJECT OCSD may at any time, without notice to any Surety, by Change Order, make any changes in the Work within the general scope of the Contract Document, including but not limited to changes: 1. In the Specifications (including Drawings and designs); 2. In the time, method or manner of performance of the Work; 3. In OCSD-furnished facilities, equipment, materials, services or site; or 4. Directing acceleration in the performance of the Work. C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 7 of 19 No change of period of performance or Contract Price, or any other change in the Contract Documents, shall be binding until the Contract is modified by a fully executed Change Order. All Change Orders shall be issued in accordance with the requirements set forth in the General Conditions, "Request for Change (Changes at CONTRACTOR's Request)" and "OWNER Initiated Changes". SECTION—10 LIQUIDATED DAMAGES FOR DELAY Liquidated Damages shall be payable in the amounts and upon the occurrence of such events or failure to meet such requirements or deadlines as provided in the Special Provisions, "Liquidated Damages and Incentives." SECTION—11 CONTRACT PRICE AND METHOD OF PAYMENT A. OCSD agrees to pay and the CONTRACTOR agrees to accept as full consideration for the faithful performance of this Contract, subject to any additions or deductions as provided in approved Change Orders, the sum of One Hundred Twenty-Six Million Nine Hundred Eight Thousand Three Hundred Dollars ($126,908,300)as itemized on the Attached Exhibit"A". Upon satisfaction of the conditions precedent to payment set forth in the General Requirements, Additional General Requirements and General Conditions (including but not limited to Sections entitled "Mobilization Payment Requirements" and "Payment Itemized Breakdown of Contract Lump Sum Prices"), there shall be paid to the CONTRACTOR an initial Net Progress Payment for mobilization. OCSD shall issue at the commencement of the job a schedule which shows: 1. A minimum of one payment to be made to the CONTRACTOR for each successive four(4)week period as the Work progresses, and C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 8 of 19 2. The due dates for the CONTRACTOR to submit requests for payment to meet the payment schedule. After the initial Net Progress Payment, and provided the CONTRACTOR submits the request for payment prior to the end of the day required to meet the payment schedule, the CONTRACTOR shall be paid a Net Progress Payment on the corresponding monthly payment date set forth in the schedule. Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the ENGINEER, stating that the Work for which payment is demanded has been performed in accordance with the terms of the Contract Documents, and that the amount stated in the certificate is due under the terms of the Contract. Payment applications shall also be accompanied with all documentation, records, and releases as required by the Contract, Exhibit A, Schedule of Prices, and General Conditions, "Payment for Work- General". The Total amount of Progress Payments shall not exceed the actual value of the Work completed as certified by OCSD's ENGINEER. The processing of payments shall not be considered as an acceptance of any part of the Work. B. As used in this Section, the following defined terms shall have the following meanings: 1. "Net Progress Payment" means a sum equal to the Progress Payment less the Retention Amount and other qualified deductions (Liquidated Damages, stop payment notices, etc.). 2. "Progress Payment" means a sum equal to: a. the value of the actual Work completed since the commencement of the Work as determined by OCSD; C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 9 of 19 b. plus the value of material suitably stored at the worksite, treatment plant or approved storage yards subject to or under the control of OCSD since the commencement of the Work as determined by OCSD; C. less all previous Net Progress Payments; d. less all amounts of previously qualified deductions; e. less all amounts of OCIP payments for the CONTRACTOR's obligation, OCIP-related costs and OCIP penalties assessed as specified in the General Conditions; f. less all amounts previously retained as Retention Amounts. 3. "Retention Amount" for each Progress Payment means the percentage of each Progress Payment to be retained by OCSD to assure satisfactory Completion of the Contract. The amount to be retained from each Progress Payment shall be determined as provided in the General Conditions-"Retained Funds; Substitution of Securities." SECTION—12 SUBSTITUTION OF SECURITIES IN LIEU OF RETENTION OF FUNDS Pursuant to Public Contract Code Section 22300 at seq., the CONTRACTOR may, at its sole expense, substitute securities as provided in General Conditions - "Retained Funds; Substitution of Securities." SECTION—13 COMPLETION Final Completion and Final Acceptance shall occur at the time and in the manner specified in the General Conditions, "Final Acceptance and Final Completion' and "Final Payment". C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 10 of 19 Upon receipt of CONTRACTOR's affidavit, and all documentation, records, and releases as required by the Contract, OCSD shall proceed with the Final Acceptance as specified in General Conditions. SECTION—14 CONTRACTOR'S EMPLOYEES COMPENSATION A. Davis-Bacon Act: CONTRACTOR will pay and will require all Subcontractors to pay all employees on said Project a salary or wage at least equal to the prevailing rate of per diem wages as determined by the Secretary of Labor in accordance with the Davis-Bacon Act for each craft or type of worker needed to perform the Contract. The provisions of the Davis- Bacon Act shall apply only if the Contract is in excess of Two Thousand Dollars ($2,000.00) and when twenty-five percent (25%) or more of the Contract is funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the Davis-Bacon Act to be complied with are incorporated herein as a part of this Contract and referred to by reference. B. General Prevailing Rate: OCSD has been advised by the State of California Director of Industrial Relations of its determination of the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime Work in the locality in which the Work is to be performed for each craft or type of Work needed to execute this Contract, and copies of the same are on file in the Office of the ENGINEER of OCSD. The CONTRACTOR agrees that not less than said prevailing rates shall be paid to workers employed on this public works Contract as required by Labor Code Section 1774 of the State of California. C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 11 of 19 Per California Labor Code 1773.2, OCSD will have on file copies of the prevailing rate of per diem wages at its principal office and at each job site, which shall be made available to any interested party upon request. C. Forfeiture for Violation: CONTRACTOR shall, as a penalty to OCSD, forfeit Two Hundred Dollars ($200.00)for each calendar day or portion thereof for each worker paid (either by the CONTRACTOR or any Subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the Work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California. D. Apprentices: Sections 1777.5, 1777.6, 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices are applicable to this Contract and the CONTRACTOR shall comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00)or more. E. Workday: In the performance of this Contract, not more than eight(8) hours shall constitute a day's work, and the CONTRACTOR shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (B) above. CONTRACTOR shall conform to Article 3, Chapter 1, Part 7 (Section 1810 at seq.)of the Labor Code of the State of California and shall forfeit to OCSD as a penalty, the sum of Twenty-five Dollars ($25.00)for each worker employed in the execution of this Contract by 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 calendar day and forty (40) hours in any one week in violation of said Article. C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 12 of 19 CONTRACTOR shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by CONTRACTOR in connection with the Project. F. Record of Wages: Inspection: CONTRACTOR agrees to maintain 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 it in connection with the Project and agrees to require that each of its Subcontractors do the same. All payroll records shall be certified as accurate by the applicable CONTRACTOR or Subcontractor or its agent having authority over such matters. CONTRACTOR further agrees that its payroll records and those of its Subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general. Penalties for non- compliance with the requirements of Section 1776 may be deducted from Project payments per the requirements of Section 1776. SECTION — 15 SURETY BONDS CONTRACTOR shall, before entering upon the performance of this Contract, furnish Bonds approved by OCSD's General Counsel—one in the amount of one hundred percent (100%)of the Contract amount, to guarantee the faithful performance of the Work, and the other in the amount of one hundred percent (100%)of the Contract amount to guarantee payment of all claims for labor and materials furnished. As changes to the Contract occur via approved C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 13 of 19 Change Orders, the CONTRACTOR shall assure that the amounts of the Bonds are adjusted to maintain 100% of the Contract Price. This Contract shall not become effective until such Bonds are supplied to and approved by OCSD. Bonds must be issued by a Surety authorized by the State Insurance Commissioner to do business in California. The Performance Bond shall remain in full force and effect through the warranty period, as specified in Section 19 below. All Bonds required to be submitted relating to this Contract must comply with California Code of Civil Procedure Section 995.630. Each Bond shall be executed in the name of the Surety insurer under penalty of perjury, or the fact of execution of each Bond shall be duly acknowledged before an officer authorized to take and certify acknowledgments, and either one of the following conditions shall be satisfied: A. A copy of the transcript or record of the unrevoked appointment, power of attorney, by- laws, or other instrument, duly certified by the proper authority and attested by the seal of the insurer entitling or authorizing the person who executed the Bond to do so for and on behalf of the insurer, is on file in the Office of the County Clerk of the County of Orange; or B. A copy of a valid power of attorney is attached to the Bond. SECTION—16 INSURANCE CONTRACTOR shall not commence Work under this Contract until it enrolls in the Owner Controlled Insurance Program (OCIP) and all additional insurance as required by the Contract Exhibit B and Exhibit C is obtained in a form acceptable to OCSD, nor shall CONTRACTOR allow any Subcontractor to commence Work on a subcontract until each eligible Subcontractor enrolls in the OCIP and all additional insurance required of the Subcontractor by the Contract, Exhibit B and Exhibit C has been obtained. CONTRACTOR shall maintain all of the additional C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 14 of 19 insurance coverages in force through the point at which the Work under this Contract is fully completed and accepted by OCSD pursuant to the provisions of the General Conditions, "Final Acceptance and Final Completion". Furthermore, CONTRACTOR shall maintain all of the additional insurance coverages in full force and effect throughout the warranty period, commencing on the date of Final Acceptance. The requirement for carrying the additional insurance shall not derogate from the provisions for indemnification of OCSD by CONTRACTOR under Section 17 of this Contract. CONTRACTOR's additional insurance shall also comply with all insurance requirements prescribed by agencies from whom permits shall be obtained for the Work and any other third parties from whom third party agreements are necessary to perform the Work (collectively, the "Third Parties"), The Special Provisions may list such requirements and sample forms and requirements from such Third Parties may be included in an attachment to the General Requirements. CONTRACTOR bears the responsibility to discover and comply with all requirements of Third Parties, including meeting specific insurance requirements, which are necessary for the complete performance of the Work. To the extent there is a conflict between the Third Parties' insurance requirements and those set forth by OCSD herein, the requirement(s) providing the more protective coverage for both OSCD and the Third Parties shall control and be purchased and maintained by CONTRACTOR. SECTION—17 RISK AND INDEMNIFICATION All Work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of CONTRACTOR alone. CONTRACTOR shall save, indemnify, defend, and keep OCSD and others harmless as more specifically set forth in General Conditions, "General Indemnification". C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 15 of 19 SECTION—18 TERMINATION This Contract may be terminated in whole or in part in writing by OCSD in the event of substantial failure by the CONTRACTOR to fulfill its obligations under this Agreement, or it may be terminated by OCSD for its convenience provided that such termination is effectuated in a manner and upon such conditions set forth more particularly in General Conditions, "Termination for Default" and/or"Termination for Convenience", provided that no termination may be effected unless proper notice is provided to CONTRACTOR at the time and in the manner provided in said General Conditions. If termination for default or convenience is effected by OCSD, an equitable adjustment in the price provided for in this Contract shall be made at the time and in the manner provided in the General Conditions, "Termination for Default" and "Termination for Convenience". SECTION—19 WARRANTY The CONTRACTOR agrees to perform all Work under this Contract in accordance with the Contract Documents, including OCSD's designs, Drawings and Specifications. The CONTRACTOR guarantees for a period of at least one (1) year from the date of Final Acceptance of the Work, pursuant to the General Conditions, "Final Acceptance and Final Completion" that the completed Work is free from all defects due to faulty materials, equipment or workmanship and that it shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs of any damage to other parts of the system resulting from such defects. OCSD shall promptly give notice to the CONTRACTOR of observed defects. In the event that the CONTRACTOR fails to make adjustments, repairs, corrections or other work made necessary by such defects, OCSD may do so and charge the CONTRACTOR the cost incurred. The CONTRACTOR's warranty shall continue as to any corrected deficiency until the later of(1)the remainder of the original one-year warranty period; C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 16 of 19 or(2)one year after acceptance by OCSD of the corrected Work. The Performance Bond and the Payment Bond shall remain in full force and effect through the guarantee period. The CONTRACTOR's obligations under this clause are in addition to the CONTRACTOR's other express or implied assurances under this Contract, including but not limited to specific manufacturer or other extended warranties specified in the Plans and Specifications, or state law and in no way diminish any other rights that OCSD may have against the CONTRACTOR for faulty materials, equipment or Work. SECTION—20 ASSIGNMENT No assignment by the CONTRACTOR of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by OCSD unless such assignment has had prior written approval and consent of OCSD and the Surety. SECTION—21 RESOLUTION OF DISPUTES OCSD and the CONTRACTOR shall comply with the provisions of California Public Contract Code Section 20104 at. seq., regarding resolution of construction claims for any Claims which arise between the CONTRACTOR and OCSD, as well as all applicable dispute and Claims provisions as set forth in the General Conditions and as otherwise required by law. This Section does not apply to any OCIP-related claims. SECTION—22 SAFETY & HEALTH CONTRACTOR shall comply with all applicable safety and health requirements mandated by federal, state, city and/or public agency codes, permits, ordinances, regulations, and laws, as well as these Contract Documents, including but not limited to the General Requirements Section entitled "Safety" and Exhibit D, OCIP Safety Standards. C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 17 of 19 SECTION—23 NOTICES Any notice required or permitted under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing. TO OCSD: Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708-7018 Attn: Clerk of the Board Copy to: Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, California 92708-7018 Attn: Construction Manager Bradley R. Hogin, Esquire Woodruff, Spradlin & Smart 555 Anton Boulevard Suite 1200 Costa Mesa, California 92626 TO CONTRACTOR: W.M. Lyles Company P.O. Box 4377 Fresno, CA 93744 Copy to: David B. Dawson, Sr. Vice President W.M. Lyles Company P.O. Box 4377 Fresno, CA 93744 C-CA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 18 of 19 IN WITNESS WHEREOF, the parties hereto have executed this Contract Agreement as the date first hereinabove written. Approved as to Form: Marc Dubois Contracts, Purchasing and Materials Management Division Manager CONTRACTOR: W.M. Lyles Company P.O. Box 4377 Fresno, CA 93744 By Its CONTRACTOR's State License No. 422390 (Expiration Date—6/31/2014) OCSD: Orange County Sanitation District By Chair, Board of Directors By Clerk of the Board By Marc Dubois Contracts, Purchasing and Materials Management Division Manager C-CA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 19 of 19 EXHIBIT A SCHEDULE OF PRICES C-EXA-070612 TABLE OF CONTENTS EXHIBIT A SCHEDULE OF PRICES EXA-1 BASIS OF COMPENSATION ..............................................................................1 EXA-2 PROGRESS PAYMENTS....................................................................................1 EXA-3 RETENTION AND ESCROW ACCOUNTS .........................................................1 EXA-4 STOP PAYMENT NOTICE ..................................................................................3 EXA-5 PAYMENT TO SUBCONTRACTORS..................................................................3 EXA-6 PAYMENT OF TAXES.........................................................................................3 EXA-7 FINAL PAYMENT ................................................................................................4 EXA-8 DISCOVERY OF DEFICIENCIES BEFORE AND AFTER FINAL PAYMENT.....6 ATTACHMENT 1 CERTIFICATION FOR REQUEST FOR PAYMENT........................7 ATTACHMENT 2 SCHEDULE OF PRICES ...........................................................8 C-EXA-070612 EXHIBIT A SCHEDULE OF PRICES EXA-1 BASIS OF COMPENSATION CONTRACTOR will be paid the Contract Document price according to the Schedule of Prices, and all other applicable terms and conditions of the Contract Documents. EXA-2 PROGRESS PAYMENTS Progress payments will be made in accordance with all applicable terms and conditions of the Contract Documents, including, but not limited to: 1. Contract Agreement—Section 11 —"Contract Price and Method of Payment;" 2. General Conditions—"Payment—General"; 3. General Conditions—"Payment—Applications for Payment"; 4. General Conditions—"Payment— Mobilization Payment Requirements;' 5. General Conditions—"Payment— Itemized Breakdown of Contract Lump Sum Prices"; 6. General Conditions—"Contract Price Adjustments and Payments"; 7. General Conditions—"Suspension of Payments'; 8. General Conditions—"OCSD's Right to Withhold Certain Amounts and Make Application Thereof"; and 9. General Conditions—"Final Payment." EXA-3 RETENTION AND ESCROW ACCOUNTS A. Retention: OCSD shall retain a percentage of each progress payment to assure satisfactory completion of the Work. The amount to be retained from each progress payment shall be determined as provided in General Conditions— "Retained Funds; Substitution of Securities". In all contracts between CONTRACTOR and its Subcontractors and/or Suppliers, the retention may not exceed the percentage specified in the Contract Documents. C-EXA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 1 of 10 B. Substitution of Securities: CONTRACTOR may, at its sole expense, substitute securities as provided in General Conditions—"Retained Funds; Substitution of Securities." Payment of Escrow Agent: In lieu of substitution of securities as provided above, the CONTRACTOR may request and OCSD shall make payment of retention earned directly to the escrow agent at the expense of the CONTRACTOR. At the expense of the CONTRACTOR, the CONTRACTOR may direct the investment of the payments into securities consistent with Government Code §16430 and the CONTRACTOR shall receive the interest earned on the investments upon the same terms provided for in this article for securities deposited by the CONTRACTOR. Upon satisfactory completion of the Contract, the CONTRACTOR shall receive from the escrow agent all securities, interest and payments received by the escrow agent from OCSD, pursuant to the terms of this article. The CONTRACTOR shall pay to each Subcontractor, not later than twenty (20)calendar days after receipt of the payment, the respective amount of interest earned, net of costs attributed to retention withheld from each Subcontractor, on the amount of retention withheld to ensure the performance of the Subcontractor. The escrow agreement used by the escrow agent pursuant to this article shall be substantially similar to the form set forth in §22300 of the California Public Contract Code. C. Release of Retention: Upon Final Acceptance of the Work, the CONTRACTOR shall submit an invoice for release of retention in accordance with the terms of the Contract. D. Additional Deductions: In addition to the retentions described above, OCSD may deduct from each progress payment any or all of the following: 1. Liquidated Damages that have occurred as of the date of the application for progress payment; 2. Deductions from previous progress payments already paid, due to OCSD's discovery of deficiencies in the Work or non-compliance with the Specifications or any other requirement of the Contract; 3. Sums expended by OCSD in performing any of the CONTRACTOR'S obligations under the Contract that the CONTRACTOR has failed to perform, and; 4. Other sums that OCSD is entitled to recover from the CONTRACTOR under the terms of the Contract, including but not limited to OCIP related withholdings, costs and fees as specified in Exhibit B and Exhibit C Insurance Manual. C-EXA-070612 PROJECT NO.Pi-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 2 of 10 The failure of OCSD to deduct any of the above-identified sums from a progress payment shall not constitute a waiver of OCSD's right to such sums or to deduct them from a later progress payment. EXA-4 STOP PAYMENT NOTICE In addition to other amounts properly withheld under this article or under other provisions of the Contract, OCSD shall retain from progress payments otherwise due the CONTRACTOR an amount equal to one hundred twenty-five percent (125%)of the amount claimed under any stop payment notice under Civil Code§9350 at. seq. or other lien filed against the CONTRACTOR for labor, materials, supplies, equipment, and any other thing of value claimed to have been furnished to and/or incorporated into the Work; or for any other alleged contribution thereto. In addition to the foregoing and in accordance with Civil Code§9358 OCSD may also satisfy its duty to withhold funds for stop payment notices by refusing to release funds held in escrow pursuant to public receipt of a release of stop payment notice executed by a stop payment notice claimant, a slop payment notice release bond, an order of a court of competent jurisdiction, or other evidence satisfactory to OCSD that the CONTRACTOR has resolved such claim by settlement. EXA-5 PAYMENT TO SUBCONTRACTORS Requirements 1. The CONTRACTOR shall pay all Subcontractors for and on account of Work performed by such Subcontractors, not later than seven (7) days after receipt of each progress payment as required by the California Business and Professions Code §7108.5. Such payments to Subcontractors shall be based on the measurements and estimates made pursuant to article progress payments provided herein. 2. Except as specifically provided by law, the CONTRACTOR shall pay all Subcontractors any and all retention due and owing for and on account of Work performed by such Subcontractors not later than seven (7)days after CONTRACTOR'S receipt of said retention proceeds from OCSD as required by the California Public Contract Code§7107. EXA-6 PAYMENT OF TAXES Unless otherwise specifically provided in this Contract, the Contract Price includes full compensation to the CONTRACTOR for all taxes. The CONTRACTOR shall pay all federal, state, and local taxes, and duties applicable to and assessable against any Work, including but not limited to retail sales and use, transportation, export, import, business, and special taxes. The CONTRACTOR shall ascertain and pay the taxes when due. The CONTRACTOR will maintain auditable records, subject to OCSD reviews, confirming that tax payments are current at all times. C-EXA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 3 of 10 EXA-7 FINAL PAYMENT After Final Acceptance of the Work, as more particularly set forth in the General Conditions, "Final Acceptance and Final Completion", and after Resolution of the Board authorizing final payment and satisfaction of the requirements as more particularly set forth in General Conditions—"Final Payment", a final payment will be made as follows: 1. Prior to Final Acceptance, the CONTRACTOR shall prepare and submit an application for final payment to OCSD, including: a. The proposed total amount due the CONTRACTOR, segregated by items on the payment schedule, amendments, Change Orders, and other bases for payment; b. Deductions for prior progress payments; c. Less all amounts for the OCIP including, but not limited to, payments for the Contractor's Obligation, OCIP-related audit costs and OCIP penalties assessed; d. Amounts retained; e. A Conditional Waiver And Release On Final Payment for each Subcontractor(per Civil Code Section 8136); f. A Conditional Waiver And Release On Final Payment on behalf of the CONTRACTOR (per Civil Code Section 8136); g. List of Claims the CONTRACTOR intends to file at that time or a statement that no Claims will be filed, h. List of pending unsettled claims, stating claimed amounts, and copies of any and all complaints and/or demands for arbitration received by the CONTRACTOR; and i. For each and every claim that resulted in litigation or arbitration which the CONTRACTOR has settled, a conformed copy of the Request for Dismissal with prejudice or other satisfactory evidence the arbitration is resolved. j. All completed Aon Form-5 Notices of Work Completion for itself and each Subcontractor as specified in Exhibit B and Exhibit C Insurance Manual. 2. The application for final payment shall include complete and legally effective releases or waivers of liens and stop payment notices satisfactory to OCSD, arising out of or filed in connection with the Work. Prior progress C-EXA-070612 PROJECT NO.Pi-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 4 of 10 payments shall be subject to correction in OCSD's review of the application for final payment. Claims filed with the application for final payment must be otherwise timely under the Contract and applicable law. 3. Within a reasonable time, OCSD will review the CONTRACTOR'S application for final payment. Any recommended changes or corrections will then be forwarded to the CONTRACTOR. Within ten (10)calendar days after receipt of recommended changes from OCSD, the CONTRACTOR will make the changes, or list Claims that will be filed as a result of the changes, and shall submit the revised application for final payment. Upon acceptance by OCSD, the revised application for final payment will become the approved application for final payment. 4. If no Claims have been filed with the initial or any revised application for final payment, and no Claims remain unsettled within thirty (30)calendar days after Final Acceptance of the Work by OCSD, and agreements are reached on all issues regarding the application for final payment, OCSD, in exchange for an executed release, satisfactory in form and substance to OCSD, will pay the entire sum found due on the approved application for final payment, including the amount, if any, allowed on settled Claims. 5. The release from the CONTRACTOR shall be from any and all Claims arising under the Contract, except for Claims that with the concurrence of OCSD are specifically reserved, and shall release and waive all unreserved Claims against OCSD and its officers, directors, employees and authorized representatives. The release shall be accompanied by a certification by the CONTRACTOR that: a. It has resolved all Subcontractors, Suppliers and other Claims that are related to the settled Claims included in the final payment; b. It has no reason to believe that any party has a valid Claim against the CONTRACTOR or OCSD which has not been communicated in writing by the CONTRACTOR to OCSD as of the date of the certificate; c. All warranties are in full force and effect, and; d. The releases and the warranties shall survive final payment. 6. If any claims remain open, OCSD may make final payment subject to resolution of those claims. OCSD may withhold from the final payment an amount not to exceed one hundred fifty percent (150%)of the sum of the amounts of the open claims, and one hundred twenty-five percent (125%) of the amounts of open stop payment notices referred to in article entitled stop payment notices herein. 7. The CONTRACTOR shall provide an Unconditional Waiver and Release On Final Payment from each Subcontractor and Supplier providing Work under the Contract(per Civil Code section 8138) and an Unconditional Waiver and Release On Final Payment on behalf of the CONTRACTOR (per Civil Code Section 8138)within 30 days of receipt of Final Payment. C-EXA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 5 of 10 EXA-S DISCOVERY OF DEFICIENCIES BEFORE AND AFTER FINAL PAYMENT Notwithstanding OCSD's acceptance of the application for final payment and irrespective of whether it is before or after final payment has been made, OCSD shall not be precluded from subsequently showing that: 1. The true and correct amount payable for the Work is different from that previously accepted; 2. The previously-accepted Work did not in fact conform to the Contract requirements, or; 3. A previous payment or portion thereof for Work was improperly made. OCSD also shall not be stopped from demanding and recovering damages from the CONTRACTOR, as appropriate, under any of the foregoing circumstances as permitted under the Contractor applicable law. C-EXA-070612 PROJECT NO.Pi-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 6 of 10 ATTACHMENTI CERTIFICATION FOR REQUEST FOR PAYMENT I hereby certify under penalty of perjury as follows: That the claim for payment is in all respects true, correct; that the services mentioned herein were actually rendered and/or supplies delivered to OCSD in accordance with the Contract. I understand that it is a violation of both the federal and California False Claims Acts to knowingly present or cause to be presented to OCSD a false claim for payment or approval. A claim includes a demand or request for money. It is also a violation of the False Claims Acts to knowingly make use of a false record or statement to get a false claim paid. The term "knowingly" includes either actual knowledge of the information, deliberate ignorance of the truth or falsity of the information, or reckless disregard for the truth or falsity of the information. Proof of specific intent to defraud is not necessary under the False Claims Acts. I understand that the penalties under the Federal False Claims Act and State of California False Claims Act are non-exclusive, and are in addition to any other remedies which OCSD may have either under contract or law. I hereby further certify, to the best of my knowledge and belief, that: 1. The amounts requested are only for performance in accordance with the Specifications, terms, and conditions of the Contract; 2. Payments to Subcontractors and Suppliers have been made from previous payments received under the Contract, and timely payments will be made from the proceeds of the payment covered by this certification; 3. This request for progress payments does not include any amounts which the prime CONTRACTOR intends to withhold or retain from a Subcontractor or Supplier in accordance with the terms and conditions of the subcontract; and 4. This certification is not to be construed as Final Acceptance of a Subcontractor's performance. Name Title Date C-EXA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 7 of 10 ATTACHMENT SCHEDULE OF PRICES Item Approx. Item Unit Total No. Qty. Price Price 1. Lump Mobilization Sum Mobilization in accordance with General (LS) Conditions, Payment—Mobilization Payment requirements, Division 01, Section 01155, Measurement and Payment and Section 01711, Mobilization and Demobilization, in conformance with the Contract Documents for the lump sum price of: LS $ 31000,000 2. Lump Sheeting, Shoring and Bracing Sum Furnish all labor, materials and equipment (LS) necessary for sheeting, shoring and bracing for protection of life and limb in trenches, open excavations and confined spaces and in conformance with the Contract Documents for the lump sum price of: LS $ 2,000,000 3. Lump Sludge Dewatering and Odor Control at Plant 1 Sum Furnish all labor, materials, equipment and (LS) services, except for Bid Item Nos. 1 through 12, for the Construction of Sludge Dewatering and Odor Control at Plant no. 1 in conformance with the Contract Documents, and consistent with the selected Dewatering Centrifuge Alternative selected in Bid Item 5,for the lump sum price of: LS $ 86,343,573 4. 41,240 Piles Linear Furnish all labor, materials and equipment Feet necessary for piles as specified in Sections (LF) 02373, Drilled piers and 02374, Drilled Piers— Load Testing and in compliance with the Contract $1531 Documents for the unit and total price of: LF $ 6,309,720 5. Lump Thickening Centrifuges Sum Furnish,factory test and deliver three(3) (LS) Thickening Centrifuge systems, including centrifuges, motors,variable frequency drives, lubrication systems, control panels, sensors and monitoring Equipment, sludge density meters, centrate and discharge chutes, spare parts, tools, all other accessories and appurtenances, training and on-site services in accordance with Section 11369,Thickening Centrifuges and in conformance with the Contract Documents for the lump sum price of(Cost for installation and on-site testing of the centrifuge system shall be included in Bid Item No. 3): LS $ 12,852,007 C-EXA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 8 of 10 Item Approx. Item Unit Total No. Cry. Price Price 5a. Lump Thickening Centrifuge Spare Rotating Sum Assembly (LS) Furnish,factory test and deliver one spare rotating assembly for the Thickening Centrifuge systems, including rotating assembly, bearings, storage supports, and all other accessories and appurtenances in accordance with Section 11369, Thickening Centrifuges and in conformance with the Contract Documents for the lump sum price of: LS $ 1,452,000 5b. Lump Thickening Centrifuge Operations and Sum Maintenance Assistance (LS) Furnish operations and maintenance assistance associated with the Thickening Centrifuge systems, including parts and materials, in accordance with Section 11369 and in conformance with the Contract Documents for the lump sum price of: LS $ 361,000 6. Lump Dewatering Centrifuges Sum Furnish,factory test and deliver three (3) (LS) Dewatering Centrifuge systems, including centrifuges, motors,variable frequency drives, lubrication systems, control panels, sensors and monitoring equipment, sludge density meters, centrate and discharge chutes, spare parts, tools, all other accessories and appurtenances, training and on-site services using either Alternative A or Alternative B and indicating with a checkmark in the appropriate box below for the alternative being bid, and in conformance with the Contract Documents for the lump sum price of(Cost for installations and on-site testing of the centrifuge system shall be included n Bid Item No. 3): ALTERNATIVE A: [ ]Westfalia, as specified in Section 11365A ALTERNATIVE B: [ ]Alta Laval, as specified in Section 11365B LS $ 6,300,000 6a. Lump Dewatering Centrifuge Spare Rotating Sum Assembly (LS) Furnish,factory test and deliver one spare rotating assembly for the Dewatering Centrifuge systems bid in item 6, including rotating assembly, bearings, storage supports and all other accessories and appurtenances and in conformance with the Contract Documents for the lump sum price of: LS $ 1,200,000 C-EXA-070612 PROJECT NO. P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 9 of 10 Item Approx. Item Unit Total No. Qty. Price Price 6b. Lump Dewatering Centrifuge Operations and Sum Maintenance Assistance (LS) Furnish operations and maintenance assistance associated with the Dewatering Centrifuge systems bid Item 6, including parts and materials and in conformance with the Contract Documents for the lump sum price of: LS $ 110,000 7. Lump Sludge Cake Pumping System Sum Furnish,factory test and deliver sludge cake (LS) pumping system including progressing cavity pumps, motors, inlet chutes, sludge gates, load cell, slip injection pumps and rings,Flexible connections, cake piping and fittings, valves and actuators, pipe supports and all sludge cake pumping apparatus in accordance with Section 11250, Sludge Cake Pumping System and Section 11210, Pumps, General and in conformance with the Contract Documents for the lump sum price of., LS $ 6,100,000 8. Lump Commissioning Sum Furnish all labor, materials and equipment (LS) necessary for Commissioning in accordance with Section 01810, Commissioning and in conformance with the Contract Documents for the lump sum price of: LS $ 780,000 9. Lump Demobilization Sum Demobilization in accordance with Section 01155, (LS) Measurement and Payment and Section 01711, Mobilization and demobilization and in conformance with the Contract Documents for the lump sum price of. LS $ 100,000 TOTAL AMOUNT OF BID (BASIS OF AWARD) $ 126,908,300 C-EXA-070612 PROJECT NO.P1-101 SLUDGE DEWATERING AND ODOR CONTROL AT PLANT NO. 1 CONFORMED NOVEMBER 28,2012 Page 10 of 10 PRE-SELECTION AGREEMENT Sludge Dewatering and Odor Control at Plant No. 1, Project No P1-101 Pre-Selection Agreement THIS AGREEMENT is made and entered into as of the date fully executed below by and between ORANGE COUNTY SANITATION DISTRICT, with a principal place of business at 10844 Ellis Avenue, Fountain Valley, CA 92708-7018 (hereinafter referred to as"OCSD") and GEA Mechanical Equipment US, INC., with a principal business at 100 Fairway Court, Northvale, New Jersey 07647 (hereinafter referred to as "VENDOR") collectively referred to as the"Parties", or individually referred to as a "Party". RECITALS: WHEREAS, pursuant to Resolution No. OCSD 10-10, OCSD made sole source specification findings as required under Public Contract Code §3400 designating VENDOR by name as the only manufacturer of centrifuges meeting OCSD's needs for co-thickening sludge; and WHEREAS, OCSD desires to purchase the equipment and retain the services of VENDOR as described in the attached Scope of Workrrechnical Specifications (Exhibit"A") and herein referred to as "Equipment"and "Services"; and WHEREAS, VENDOR has submitted a cost Proposal as provided in the attached Exhibit "B"to sell the Equipment and Services in an amount not to exceed fourteen million six hundred sixty-five thousand and seven dollars ($14,665,007); and WHEREAS, the Parties enter into this Agreement with the understanding that OCSD shall thereafter assign this Agreement to its construction contractor. NOW, THEREFORE, in consideration of the promises and mutual benefits exchanged between the Parties, it is mutually agreed as follows: 1. Introduction 1.1 This Agreement and all exhibits hereto(called the "Agreement') is made by OCSD and VENDOR. The Terms and Conditions herein exclusively govern the purchase of Equipment and Services as described in the Scope of Workrrechnical Specifications, attached hereto and Incorporated herein by reference as Exhibit"A". 1.2 Exhibits to this Agreement are incorporated by reference and made a part of this Agreement as though fully set forth at length herein. Exhibits to this Agreement are as follows in order of precedence: Exhibit"A" Scope of Work/Technical Specifications Exhibit"B" VENDOR Cost Proposal Exhibit "C" Assignment of Agreement, Consent to Assignment, and Acceptance of Assignment Exhibit "D" Acknowledgement of Insurance Requirements Preselection Agreement P1-101 -1- This Agreement along with the Exhibits referenced herein shall collectively be referred to as "Agreement Documents." The following items, which may be delivered or issued on or after the Effective Date of this Agreement and are not attached hereto, shall also constitute part of the Agreement Documents: • Notice to Proceed; • Notice(s)to Commence Fabrication; • Written Amendment(s) (upon written acceptance of both parties); • Change Order(s) (upon written acceptance of both parties); • Field Order(s) (upon written acceptance of both parties); • Engineers Written Directive(s) (upon written acceptance of both parties); and • Information for Bid (IFB)for Project No. P1-101. 1.3 In the event of any conflict or inconsistency between the provisions of this Agreement and any of the provisions of the Exhibits hereto, the provisions of this Agreement shall in all respects govem and control. 1.4 The provisions of this Agreement, including changes affecting the Scope of Work/Technical Specifications detailed in Exhibit"A", may be amended or waived only by a writing executed by authorized representatives of both Parties hereto. 1.5 The various headings in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any Paragraph or provision hereof. 1.6 The term "work", when used in this Agreement, shall mean all the work specified in the Agreement Documents necessary to complete the requirements of the Agreement, including the furnishing of all labor and materials. 1.7 The term "days", when used in this Agreement, shall mean calendar days, unless otherwise noted as business days. 1.8 VENDOR shall provide OCSD with all required premiums and/or overtime work within the Scope of Work/Technical Specifications at no charge beyond the price provided under"Compensation" below. 1.9 Except as expressly provided otherwise, OCSD accepts no liability for any expenses, losses, or action incurred or undertaken by VENDOR as a result of work performed in anticipation of purchases of said Equipment and Services by OCSD. 2. Equipment and Services 2.1 VENDOR shall furnish the Equipment and Services as specified or indicated in the Agreement Documents. The Equipment and Services to be furnished are described in the Scope of Work/Technical Specifications attached hereto as Exhibit"A", and may be generally described as follows: design, shop drawings, Preselection Agreement P1-101 -2- fabrication, testing and delivery of three (3)thickening centrifuges and ancillary components in accordance with Specification section 11369 of the Sludge Dewatering and Odor Control Project at Plant 1, Project No. P1-101, assistance during installation of the Equipment, commissioning of the Equipment, delivery of Equipment manuals, operations assistance and warranty of the Equipment. 2.2 All Equipment and Services associated with the performance of this Agreement shall be done in accordance with generally accepted industry and professional standards. 3. The Project 3.1 The Project for which the Equipment and Services are to be provided under this Agreement is for OCSD's the Sludge Dewatering and Odor Control Project at Plant 1, Project No. P1-101 ("Project"). 3.2 OCSD retains the right to assign all or a portion of this Agreement, which includes the production, delivery and commissioning of Equipment and all or a portion of the associated Services,to a Contractor. For this Project, an assignment of this Agreement shall be made for the Equipment and Services to be provided herein. 4. Point of Destination 4.1 The place where the Equipment and Services are to be delivered and/or provided shall be F.O.B. destination to OCSD, Plant No. 1, 10844 Ellis Avenue, Fountain Valley, California, within the lead time as required by the subsequent Invitation for Bid (IFB) issued for the Project. 4.2 VENDOR assumes full responsibility for all transportation, transportation scheduling, packing, handling, insurance, and other services associated with delivery of all products deemed necessary under this Agreement. 4.3 Title of Equipment shall transfer to OCSD upon payment in full. Risk of loss shall transfer to OCSD upon delivery of Equipment to OCSD's Point of Destination. 5. Agreement Times 5.1 All time limits for Milestones for the delivery of Equipment and the furnishing of Services as stated in the Invitation for Bid are of the essence of the Agreement. All work performed under this Agreement shall be completed within the days specified in the subsequent Information for Bid. 5.2 The term of this Agreement may be extended only by written instrument signed by both Parties. 5.3 Liquidated Damages 5.3.1 OCSD and VENDOR recognize that time is of the essence of this Agreement and that OCSD will suffer damages if the Equipment is not Preselection Agreement P1-101 -3- fabricated and ready for delivery within the time specified in the subsequent Information for Bid and/or the Services are not delivered in a timely manner or are not in conformance with the requirements of the Agreement Documents as to cause a delay in the Commissioning of the Equipment. The Parties also recognize that the timely performance of services by other parties involved in OCSD's Project are materially dependent upon the VENDOR's specific compliance with the times specified in the subsequent Information for Bid plus any extensions thereof allowed in accordance with the terms provided herein. Further, the Parties recognize that the delays, expense, and difficulties Involved in proving the actual losses or damages suffered by OCSD if complete acceptable submittals are not delivered on time. Accordingly, and instead of requiring proof of such losses or damages, OCSD and VENDOR agree that as liquidated damages for delay (but not as a penalty), VENDOR shall pay OCSD one thousand dollars ($1,000)for each day that expires after the times or dates specified for deliveries. By execution of this Agreement, the Parties expressly agree that these liquidated damage amounts are reasonable under the circumstances existing at the time this Agreement is executed. 5.3.2 OCSD may deduct the amount of liquidated damages from monies due the VENDOR under this Agreement. 5.3.3 The liquidated damages set forth in this section 5 shall constitute OCSD's sole and exclusive remedy for delays by the VENDOR in achieving any of the milestone delivery dates with respect to the delivery of Equipment and Services under the applicable provisions of the Agreement Documents. 6. Compensation 6.1 OCSD shall pay VENDOR for furnishing the Equipment and Services in accordance with the Agreement Documents in current funds in an amount not to exceed the total amount of fourteen million six hundred sixty-five thousand and seven dollars ($14,665,007) as stated in VENDOR's Proposal, attached hereto as Exhibit"S." 6.2 Pricing as Indicated in VENDOR's Proposal attached hereto as Exhibit"B" shall remain available to OCSD for a period of two (2) years from the date of the execution of this Agreement. At no time shall the pricing as Indicated in VENDOR's Proposal be altered unless approved by OCSD. 7. Payment 7.1 Payment(s) shall be made within thirty (30) days of delivery and acceptance of the Equipment and Services to OCSD as provided in VENDOR's Proposal. VENDOR shall submit an application for progress payment to OCSD. OCSD shall be the determining party as to whether the tasks and deliverables have been completed in accordance with the Agreement Documents, Pre-Selection Agreement P1-101 -4- 8. Vendor's Representations 8.1 In order to Induce the District to enter into this Agreement, VENDOR makes the following representations: 8.1.1 VENDOR has examined and carefully studied the Agreement Documents and the other related data identified in the Scope of WorklTechnical Specifications attached hereto as Exhibit"A". 8.1.2 If specified, or if, in VENDOR's judgment, any local condition may affect cost, progress or the furnishing of Equipment and Services, VENDOR has visited the Point of Destination and become familiar with the Project, and is satisfied as to the local conditions that may affect cost, progress or the furnishing of Equipment and Services. 8.1.3 VENDOR is familiar with and is satisfied as to all local federal, state and local laws and regulations that may affect cost, progress and the furnishing of the Equipment and Services. 8.1.4 VENDOR has carefully studied and correlated the information known to VENDOR, and information and observations obtained from VENDOR's visits, If any, to the Point of Destination, with the Agreement Documents. 8.1.5 VENDOR has given OCSD written notice of all conflicts, errors, omissions, ambiguities, discrepancies, exceptions to Agreement Documents that VENDOR has discovered in the Agreement Documents. 8.1.6 The Agreement Documents are generally sufficient to indicate and convey understanding of all terms and conditions for furnishing Equipment and Services. 8.1.7 Should VENDOR discover any latent or unknown conditions materially differing from those inherent in the work or as represented by OCSD, VENDOR shall immediately inform OCSD of this and shall not proceed, except at VENDOR's risk, until written instructions are received from OCSD. 8.1.8 VENDOR's relationship to OCSD in the performance of this Agreement is that of an Independent Contractor. VENDOR's personnel performing services under this Agreement shall at all times be under VENDOR's exclusive direction and control and not employees of OCSD. VENDOR shall pay all wages, including prevailing wages, where applicable, salaries and other amounts due to its employees in connection with this Agreement and shall be responsible for all applicable state, federal, and local reports and obligations respecting them as labor wages, social security, income tax withholding, unemployment compensation and similar matters. Pre-Selection Agreement P1-101 -5- 9. Assionment 9.1 OCSD has the right to assign this Agreement for furnishing Equipment and Services hereunder, and VENDOR shall accept such assignment. Services shall be fumished by VENDOR. Forms documenting the assignment of this Agreement are attached as Exhibit"C"to this Agreement. 9.2 This Agreement will be executed in the name of OCSD initially, and will be later assigned to a construction contractor, hereinafter referred to as the"Contractor," designated by OCSD. The assignment of this Agreement will occur on the effective date of the agreement between OCSD and the Contractor, which is expected to occur on or about August of 2012. As of the date of acceptance of the assignment by the Contractor, all references in the Agreement Documents to OCSD shall mean the designated Contractor whose responsibilities will include the installation or erection or incorporation of the Equipment. 9.3 Except for the obligations set forth in Section 15 (Safety Requirements of OCSD) and 16 (Proprietary and Confidential Information), the assignment of this Agreement shall relieve the District from all further obligations and liabilities under the Agreement that shall be consistent with or reasonably inferable from the overall intent of the Agreement Documents. After assignment, VENDOR shall become a subcontractor or supplier to the assignee and, except as noted herein, all rights, duties, and obligations of OCSD under the Agreement shall become the rights, duties and obligations of the assignee. 9.4 After assignment: 9.4.1 All performances, warranties, and guarantees required by the Agreement Documents will continue to run for the benefit of OCSD and, in addition, for the benefit of the assignee. 9.4.2 Upon written request by either assignee or VENDOR, OCSD will issue, with reasonable promptness, such clarifications or interpretations of the Agreement Documents, which shall be consistent with or reasonably inferable from the overall intent of the Agreement Documents. Such written clarifications and interpretations will be final and binding on assignee and VENDOR unless a written appeal is delivered to OCSD within 30 days after the date of such decision. 9.4.3 No other assignment by a Party hereto of any rights under or interests in the Agreement Documents will be binding on another party hereto without the written consent of the Party sought to be bound. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement Documents. 9.5 This Agreement shall be binding upon the Parties to this Agreement and their respective successors, representatives, heirs and assigns. Preselection Agreement P7-101 -6- 10. Termination 10.1 OCSD reserves the right to terminate this Agreement for its convenience,with or without cause, in whole or in part, at any time, by written notice from OCSD, (delivered by certified mail, return receipt requested) of intent to terminate. Upon receipt of a termination notice, VENDOR shall immediately discontinue all work under this Agreement(unless the notice directs otherwise). OCSD shall thereafter, within thirty (30) days, pay VENDOR for work performed and costs incurred (cost and fee)to the date of termination. VENDOR expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Agreement. Such notice of termination shall terminate this Agreement and release OCSD from any further fee, cost or claim hereunder by VENDOR other than for work performed and costs incurred to the date of termination. 10.2 OCSD reserves the right to terminate this Agreement immediately upon OCSD'S determination that VENDOR is not meeting specification requirements, if the level of service is inadequate, or any other default of this Agreement. 10.3 OCSD may also immediately cancel for default of this Agreement in whole or in part by written notice to VENDOR: ❑ If VENDOR becomes insolvent or files a petition under the Bankruptcy Act; or ❑ If VENDOR sells its business; or ❑ If VENDOR breaches any of the terms of this Agreement; or ❑ If total amount of compensation exceeds the amount authorized under this Agreement. 10.4 No termination by OCSD for default shall be effective unless, within five (5) days after receipt by VENDOR of OCSD's written notice specifying such default, VENDOR shall have failed to initiate and pursue with due diligence correction of such specified default. 10.5 All OCSD property in the possession or control of VENDOR shall be returned by VENDOR to OCSD upon demand, or at the termination of this Agreement, whichever occurs first. 11. Insurance 11.1 VENDOR shall purchase and maintain, throughout the life of this Agreement and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Acknowledgement of Insurance Requirements (attached hereto and incorporated herein as Exhibit"D"). VENDOR shall not commence work under this Agreement until all required insurance is obtained in a form specified in Exhibit"D", nor shall VENDOR allow any subcontractor to commence services pursuant to a subcontract until all insurance required of the subcontractor has been obtained. Failure to maintain required insurance coverage shall result in termination of this Agreement. Preselection Agreement 121-101 -7- 12. Indemnification and Hold Harmless Provision 12.1 VENDOR agrees to save, indemnify, defend and hold harmless OCSD against any and all claims made by third parties for liability, claims,judgments, cost and demands arising from injuries or death of persons and damage to property, to the extent arising directly or indirectly out of the negligence or willful misconduct of VENDOR, its employees or agents, in relation to the rendition of Equipment and Services pursuant to this Agreement, except claims or litigations arising through the sole negligence or willful misconduct of OCSD. VENDOR agrees to reimburse OCSD for any expenditure, including reasonable attorney's fees, OCSD may incur by reason of such matters, and, will defend any such suits at the cost and expense of VENDOR, provided that OCSD has given VENDOR prompt notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof Including the right to settle or otherwise terminate such action on behalf of OCSD. 13. Warranty 13.1 All manufacturer warranties will begin as specified in Section 13.3. VENDOR shall be responsible for repairing or replacing the defective part, at no cost to OCSD including installation and freight. This warranty does not cover parts damaged by decomposition from chemical reaction or wear caused by abrasive materials, nor does it cover damage resulting from misuse, accident, neglect, or from improper operation, maintenance, modification or adjustment. 13.2 VENDOR's obligation under this warranty and any other warranty or guarantee which is part of the Agreement is limited to furnishing repairs or replacements for Equipment or parts determined to be defective on inspection by an authorized representative of VENDOR. 13.3 VENDOR warrants to OCSD that the Equipment purchase from VENDOR are free from defects in material and workmanship for a period of twenty-four(24) months from the dale of OCSD's initial operation or production using the Equipment. provided that: (a)the Equipment is installed in accordance with VENDOR's specifications and instructions and is used and maintained normally and properly in accordance with VENDOR's instructions as to maintenance and operation, as set forth in written operation and maintenance manuals furnished to OCSD by VENDOR; (b)the Equipment is used for processing product consistent with the feed characteristics set forth in VENDOR's proposal or, if none are stated in the proposal, then consistent with the Specifications outlined in the Scope of Workrrechnical Specifications, but if no feed characteristics or feed specifications are slated in the proposal or Scope of Worklrechnical Specifications, the Equipment is used to process product Identical to produce provided to VENDOR for testing prior to the Scope of Workrechnical Specifications being entered into; (c)the Equipment has not been changed without the prior written approval of Vendor; (d) OCSD gives prompt written notice to VENDOR before the end of the warranty period specifying all alleged defects In the Equipment; and (e) OCSD preserves and turns over to VENDOR and permits reasonable inspection by VENDOR of all allegedly defective Equipment, parts or items and access to the Equipment to observe its startup, operation and maintenance. Preselection Agreement P7-101 -8- 13.4 This warranty shall not cover(1) any Equipment furnished by OCSD or any third party (other than a subcontractor of VENDOR), (ii) any defects arising from corrosion, abrasion, use of unsuitable lubricants, operation outside of prescribed temperature ranges, or negligent attendance or faulty operation, (III) ordinary wear and tear, (iv) any defects caused by errors on the part of OCSD in not providing suitable premises in which the Equipment is to be located, adequate foundation, or adequate protection against influences within or outside the premises which may affect the Equipment or its operation. Notwithstanding the warranty set forth above, VENDOR shall not warrant any Equipment, where the seller of such Equipment(other than by Vendor) is specified by OCSD, for a period longer than warranted by the seller. 13.5 This warranty of material and workmanship is the only warranty made by VENDOR and is in lieu of all other warranties, express or implied, and VENDOR disclaims, on behalf of itself, its subcontractors and subsuppliers, any and all implied warranties, including, without limitation, warranties of merchantability, fitness for a specific purpose (other than the purpose stated in OCSD's Scope of WorklTechnical Specifications set forth in the Agreement Documents), suitability or performance. 14. Force Maieure 14.1 Neither party shall be liable for any loss or damage from delays caused by strikes or other labor difficulties, war, riots, changes in laws and regulations and other acts of governmental authorities, Inclement weather, fire, flood, unavoidable casualties, acts of God, or any other cause beyond its control, but said party shall use reasonable efforts to minimize the extent of the delay. Work affected by a Force Majeure condition may be rescheduled by mutual consent or may be eliminated from the Agreement. In the event of any delay caused by a Force Majeure, VENDOR will notify OCSD within a reasonable time, after VENDOR becomes aware of such cause of delay, and it is agreed that the time for delivery or completion shall be extended for a period of time at least equal to the time lost by reason of the delay. 15. Safety Requirements of OCSD 15.1 OCSD shall use all safety devices, guards, and proper safe operating and maintenance procedures as prescribed by all applicable laws, rules, regulations, codes and standards, and as set forth in operating and maintenance manuals furnished by VENDOR. OCSD shall not remove or modify any safety device, guard or warning sign. OCSD agrees to indemnify, defend and safe VENDOR harmless from any claim, liability or obligation (including the costs and reasonable attomeys'fees of any suit or claims related thereto) incurred by VENDOR as a result of persons being injured or property being damaged: (1) as a result of OCSD's failure to observe the aforesaid safety requirements; or(ii) due to use of the product for materials or products not specified in the Scope of Work/Technical Specifications; or(iii) use of non-original replacement parts not specifically authorized in writing by VENDOR; or(iv) due to changes in the Equipment made by OCSD without VENDOR's specific authorization. If the Preselection Agreement P1-101 -g- terms of the Scope of Worklrechnical Specifications do not require VENDOR to install and/or commission the Equipment, OCSD shall permit VENDOR to have an engineer on site during commissioning to perform a health and safety check, otherwise VENDOR assumes full responsibility for operation, training and verification of all aspects of health and safety with respect to the Equipment. 16. Proprietary and Confidential Information. 16.1 All drawings, notebooks, operating data, specifications, and other information, data and material ("Information") fumished to OCSD by VENDOR shall remain the proprietary and confidential property of VENDOR, and shall be used by VENDOR only with respect to the Equipment covered by the Agreement and not in connection with any other project. Information shall not be made available to any third party without VENDOR's prior written consent. 16.2 In the event VENDOR refuses to provide consent to disclose information requested pursuant to a Public Records Act request, VENDOR agrees to defend, indemnify, and hold harmless OCSD, its directors, employees, and agents, against any claim or lawsuit involving allegations of violation(s) of the Public Records Act. 16.3 OCSD shall not, nor knowingly permit any third party to reverse engineer Vendor's Equipment. Any information shall be disclosed by OCSD to its employees, consultants, contractors, or subcontractors on a need-to-know basis for the operation, maintenance, and repair of the Equipment. Intellectual property or patent rights which may be obtained on the basis of the Information or the Equipment shall remain the exclusive property of VENDOR. 17. Patent Infringement 17.1 VENDOR warrants that Equipment furnished hereunder and the sale or use thereof will not infringe any United States apparatus patent or misappropriate any third party intellectual property rights. VENDOR shall defend any suit or proceeding brought against OCSD for any alleged infringement and to pay all costs, attorney fees, and damages relating thereto provided that OCSD has given VENDOR prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof Including the right to settle or otherwise terminate such action on behalf of OCSD. VENDOR shall have no obligation hereunder and this provisions shall not apply to: (i) any Equipment which has been modified or combined with other goods or process not supplied by VENDOR; (it) any Equipment supplied according to a design, other than a VENDOR design, required by OCSD; (III) any products manufactured by the Equipment; (iv) any patent issued after the date hereof; or(v) any action settled or otherwise terminated without the prior written consent of VENDOR. If, in any such action, the Equipment is held to constitute an infringement, VENDOR shall, at its option and its own expense, procure for OCSD the right to continue using said Equipment or modify or replace it with non-infringing Equipment or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF VENDOR AND EQUIPMENT MANUFACTURER FOR ANY PATENT INFRINGEMENT. Preselection Agreement P11-101 -10- 18. Acceptance 18.1 Acceptance shall be deemed completed once VENDOR meets all the requirements as set forth in the subsequent Information for Bid, and the Equipment successfully operates as set forth in the Scope of Work/Technical Specifications. In the event, due to no fault of the Vendor, acceptance testing is not conducted within 30 months from delivery of Equipment to site or storage, OCSD shall release all retention amounts withheld for Equipment delivered and/or work performed pursuant to the Information for Bid specifications. 19. Licenses, Permits. Ordinances and Regulations 19.1 VENDOR represents and warrants to OCSD that it has obtained all licenses, permits, qualification and approvals of whatever nature that is legally required to engage in this work. Any and all fees required by State, County, City and/or municipal laws, codes and/or tariffs that pertain to work performed under the terms of this Agreement will be paid by VENDOR. 20. Applicable Laws and Regulations 20.1 VENDOR shall comply with all applicable federal, state, and local laws, rules, and regulations. The Equipment, including their design, installation, use and operation, will comply with all applicable governmental laws, regulations, executive orders, ordinances and restrictions in force at the time of the execution of this Agreement. OCSD will notify VENDOR of any state or local law, regulation, executive order, ordinance or restriction that goes above and beyond those as stated by federal agencies. However, other than as expressly agreed herein, VENDOR does not guarantee compliance with, nor will VENDOR incur any liability for failure of the Equipment to comply with any federal, state or local pollution control laws (which shall include effluent or utility control laws, rules, regulations, codes or standards; provided, however, that the Equipment will comply with any specific Equipment emission guarantees which form part of the Scope of Work/Technical Specifications. VENDOR also agrees to indemnity and hold harmless from any and all damages and liabilities assessed against OCSD as a result of VENDOR'S noncompliance therewith 20.2 VENDOR shall perform all work under this Agreement in strict conformance with applicable federal, state, and local regulatory requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, and 261, Title 22, 23, and California Water Codes Division 2. 21. Public Contracts Law 21.1 OCSD has been advised by the State of California Director of Industrial Relations of its determination of the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Agreement. VENDOR agrees that not less than said prevailing rates shall be paid to workers employed on this Agreement as required by Labor Code Section 1774 of the State of California. Preselection Agreement P1-101 _11_ 22. MISCELLANEOUS 22.1 Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in Orange County, in the event any action is brought in connection with this Agreement or the performance thereof. 22.2 Breach. The waiver of either Party of any breach or violation of, or default under, any provision of this Agreement, shall not be deemed a continuing waiver by such Party of any other provision or of any subsequent breach or violation of this Agreement or default thereunder. Any breach by VENDOR to which OCSD does not object shall not operate as a waiver of OCSD'S rights to seek remedies available to it for any subsequent breach. 22.3 Remedies. Except as otherwise provided in this Agreement, In addition to other remedies available in law or equity, if the VENDOR repudiates its obligations under this Agreement, or OCSD rejects the Equipment or Services, OCSD may (1) cancel the Agreement; (2) recover whatever amount of the purchase price OCSD has paid, and/or(3) "cover" by purchasing, or contracting to purchase, substitute Equipment or Services for those due from VENDOR. In the event OCSD elects to "cover" as described in (3), OCSD shall be entitled to recover from VENDOR as damages the difference between the reasonable cost of the substitute Equipment or Services and the agreement price. 22.4 Survival. The provisions of this Agreement dealing with Payment,Warranty, and Forum for Enforcement, shall survive termination or expiration of this Agreement. 22.5 Severabilitv. If any section, subsection, or provision of this Agreement, or any agreement or instrument contemplated hereby, or the application of such section, subsection, or provision is held invalid, the remainder of this Agreement or instrument in the application of such section, subsection or provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby, unless the effect of such invalidity shall be to substantially frustrate the expectations of the Parties. 22.6 Disclosure. VENDOR agrees not to disclose, to any third party, data or information generated from this Project without the prior written consent from OCSD. 22.7 Damage to OCSD'S Property. Any of OCSD'S property damaged by VENDOR, any subcontractors or by the personnel of either will be subject to repair or replacement by VENDOR at no cost to OCSD. 22.8 Safety and Accident Prevention Safety and Accident Prevention. VENDOR shall adhere to the Safety Requirements in Exhibit "A", if applicable. 22.9 Attorney's Fees. If any action at law or inequity or K any proceeding in the form of an Alternative Dispute Resolution (ADR) 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. Preselection Agreement P1.101 -12- 22.10 Authority to Execute. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement and that by executing this Agreement, the Parties are formally bound. 22.11 Drug-Free Workplace. All employees of VENDOR who will work at OCSD'S treatment Plant 1 (Fountain Valley) and/or Plant 2 (Huntington Beach) must adhere to the California Drug-Free Workplace Act, Sections 8350 through 8357. 22.12 Read and Understood. By signing this Agreement, VENDOR represents that he has read and understood the terms and conditions of the Agreement. 22.13 Entire Agreement. This Agreement constitutes the entire agreement of the Parties and supersedes all prior written or oral and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof. 22.14 Notices. All notices under this Agreement must be in writing. Written notice shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by any other overnight delivery service which delivers to the noticed destination and provides proof of delivery to the sender. Any facsimile notice must be followed within three (3) days by written notice. All notices shall be effective when first received at the following addresses: OCSD: Natasha Dubrovski, Principal Contracts Administrator Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708-7018 VENDOR: Michael J. Vick, President GEA Mechanical Equipment US, Inc. GEA Wesffalia Mechanical Division 100 Fairway Court Northvale, NJ 07847 23.0 Except as otherwise provided in this Agreement, in no event shall either OCSD, VENDOR, its subcontractors or subsuppliers be liable in contract or in tort or under any other legal context or theory, including negligence and strict liability,for any special, punitive, indirect, incidental or consequential damages of any kind or character, including, but not limited to, loss of use of productive facilities or goods, costs of product recall, plant downtime, damage to or loss of product, chemicals, catalysts,feedstock or other raw materials, loss of revenues or profits or loss under purchases or contracts made in reliance on the performance or non-performance of the Equipment,whether suffered by OCSD, VENDOR or any third party. OCSD, VENDOR's and its subcontractors' and subsuppliers' aggregate responsibility and liability,whether arising out of contract or tort or any other legal context or theory, including negligence and strict liability, all claims for breach of any warranty or guarantee, failure of performance or delay in performance by either party or performance or non-performance of the Equipment shall not exceed the Agreement price for the Equipment. Preselection Agreement P11-101 -13- IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate. One counterpart each has been delivered to OCSD and VENDOR. All portions of the Agreement Documents have been signed by OCSD and VENDOR on their behalf on the day and year indicated below. ORANGE COUNTY SANITATION DISTRICT Dated: 2 Z By: General Counsel (A proved As to Form) Dated: Z By: �ChAair Board of rectors Dated: 2— By: '"I . L SLR. —' Cl k of the So d GEA MECHANIC EQUIPMEN71Z Dated:— 6,Z 01 Z By: (,/� Dated: 14 By: ,C ORANGE COUNTY NITATION DISTRICT Dated: /o �- By: ontracts, Purchasing and Materials Management Division Manager NKD:ms EDM& Exhibit"A" Scope of Work/Technical Specifications Exhibit "B" VENDOR Cost Proposal Exhibit"C" Assignment of Agreement, Consent to Assignment, and Acceptance of Assignment Exhibit "D" Acknowledgement of Insurance Requirements Pre-Selection Agreement P1-101 -14- EXHIBIT "B" COST PROPOSAL EXHIBIT "Bar G�1 GEA Mechanical Equipment US, Inc. GEA Wesffalla Separator Division 100 Faimay Coun Nodheale,NJ 07847 Phone(201)767-3900 F.(201)767-3901 Saloa.waua®gea.00m July 12, 2012 Orange County Sanitation District 10644 Ellis Avenue Fountain Valley,CA 92 708-7 01 8 Attention: Umesh Murthy Centrifuge Cost Proposal Project P1-101 Specification sedion 11369 Item #5 Thickening Centrifuges Furnish,factory test and deliver three (3)Thickening Centrifuge systems, including centrifuges, motors, variable frequency drives, lubrication systems, control panels, sensors and monitoring equipment, sludge density meters, centrals and discharge chutes, spare parts,tools and all other accessories and appurtenances, training and onsite services in accordance with Section 11369, Thickening Centrifuges and in conformance with the contract documents for the lump sum price of$ 12,852,007. Item 5a Thickening Centrifuge Spare Rotating Assembly Furnish, factory test and deliver one spare rotating assembly for the Thickening Centrifuge systems including rotating assembly, bearings,storage supports and all other accessories and appurtenances in accordance with Section 11369, Thickening Centrifuges and in conformance with the contract documents for the lump sum price of$ 1,452,000. Midwest Office South Office Southwest Orrice West Office 725 Tollgate Read 4725 Lakeland Comnieroe Po,114 2408 Timberioch Place,CA 555 Baldwin Road Elgin,Illinois 80123 Lakeland.Fonda 33605.76W The Woodlands,Texas 77380 Patlerson,Celdomle 95363 Phone:(830)5034700 Pion:(883)603.8900 Phone:(281)48 7900 Phone: (209)8955300 F.:(e30)SM-4701 Fax:(883)803.8801 F. (281)48579M Fax:(209)8g5H101 G-=1 5b Thickening Centrifuge Operations and Maintenance Assistance Fumish operations and maintenance assistance associated with the Thickening Centrifuge systems, Including parts and materials, In accordance with Section 11369 and in conformance with the contract documents for the lump sum price of$361,000. Total Price: $14,666,007,00 GEA Mechanical E u�nt S nc, Richard e�PE Market Manager, Environm nt" Technology EXHIBIT "C" ASSIGNMENT OF CONTRACT, CONSENT TO ASSIGNMENT, AND ACCEPTANCE OF ASSIGNMENT EXHIBIT "C" ASSIGNMENT OF CONTRACT, CONSENT TO ASSIGNMENT, AND ACCEPTANCE OF ASSIGNMENT Sludge Dewatering and Odor Control at Plant No. 1, Project No P1-101 Pre-Selection Agreement This assignment will be effective on the Effective Date of the Agreement between the Orange County Sanitation District (OCSD) and the construction contractor (Contractor). The Pre- Selection Agreement by and between OCSD and GEA Westfalia Separator, Inc. (Vendor) for furnishing Equipment and Services under the Agreement Documents for centrifuges meeting OCSD's needs for co-thickening sludge is hereby assigned, transferred, and set over to (Contractor). Contractor hereinafter shall be totally and completely responsible for the performance of OCSD and for the duties, rights and obligations of OCSD under the terms of the Agreement between OCSD and Vendor. ASSIGNMENT DIRECTED BY: ORANGE COUNTY SANITATION DISTRICT (Name, Title) ASSIGNMENT CONSENT BY: GEA WESTFALIA SEPARATOR, INC. ('VENDOR") (Name, Title) CONTRACTOR hereby acknowledges and accepts the assignment of the Pre-Selection Agreement by and between OCSD and Vendor and shall hereinafter assume the duties, rights, and obligations of OCSD set forth therein. ASSIGNMENT ACKNOWLEDGED AND ACCEPTED BY: CONTRACTOR (Name, Title) Attachment'C'—Assignment OfContract,Consent To Assignment,AM Acceptance Of Assignment Paget oft EXHIBIT " D" ACKNOWLEDGMENT OF INSURANCE REQUIREMENTS AND CERTIFICATION OF ABILITY TO PROVIDE COVERAGES SPECIFIED ATTACHMENT 66W Return to Agenda ACKNOWLEDGMENT OF INSURANCE REQUIREMENTS AND CERTIFICATION OF ABILITY TO PROVIDE COVERAGES SPECIFIED I, 11/�GItAE� S. VIG � the �(lC?siOetii n (Michael J. Vick, President) of ISC� '� /LZCf�/}iilkA � U7't/C. certify that the (GEA Mechanical Equipment US, INC) Insurance Requirements set forth in Section 11 of the Pre-Selection Agreement, Section 16 of the Contract Agreement of the P1-101 Invitation for Bid (IFB) and other provisions of the P1-101 (IFB) as applicable to the insurance requirements have been read and understood and that our insurance company(ies) AL LSAN2- &CARAT (Z.T,W u S Aril �Z u2TGld N 0214 A1)%e ZCA [fill in name(s) of insurance company(ies)] is/are able to provide the coverages specified. SOure i ant, Secretary, Manager, Own r r Representative PI ( 61fY Date