HomeMy WebLinkAbout10-02-2024 Operations Committee Meeting Complete Agenda PacketSPECIAL NOTICE
PUBLIC ATTENDANCE & PARTICIPATION AT PUBLIC MEETINGS
Operations Committee Meeting
Wednesday, October 2, 2024
5:00 p.m.
Your participation is always welcome. OC San offers several ways in which to interact during meetings. You will find information as to these opportunities below.
IN-PERSON MEETING ATTENDANCE
You may attend the meeting in-person at the following location:
Orange County Sanitation District Headquarters Building
18480 Bandilier Circle
Fountain Valley, CA 92708
ONLINE MEETING PARTICIPATION
You may join the meeting live via Teams on your computer or similar device or web browser by
using the link below:
Click here to join the meeting
We suggest testing joining a Teams meeting on your device prior to the commencement of the
meeting. For recommendations, general guidance on using Teams, and instructions on joining a Teams meeting, please click here.
Please mute yourself upon entry to the meeting. Please raise your hand if you wish to speak
during the public comment section of the meeting. The Clerk of the Board will call upon you by
using the name you joined with.
Meeting attendees are not provided the ability to make a presentation during the meeting. Please contact the Clerk of the Board at least 48 hours prior to the meeting if you wish to present any
items. Additionally, camera feeds may be controlled by the meeting moderator to avoid
inappropriate content.
HOW TO PARTICIPATE IN THE MEETING BY TELEPHONE
To join the meeting from your phone: Dial (213) 279-1455
When prompted, enter the Phone Conference ID: 567 304 571#
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Please raise your hand to speak by use *5, during the public comment section of the meeting. The Clerk of the Board will call upon you by using the last 4 digits of your phone number as identification.
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WATCH THE MEETING ONLINE
The meeting will be available for online viewing at:
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SUBMIT A COMMENT
You may submit your comments and questions in writing for consideration in advance of the meeting by using the eComment feature available online at: https://ocsd.legistar.com/Calendar.aspx or sending them to OCSanClerk@ocsan.gov with the subject line “PUBLIC COMMENT ITEM # (insert the item number relevant to your comment)”
or “PUBLIC COMMENT NON-AGENDA ITEM”.
You may also submit comments and questions for consideration during the meeting by using the eComment feature available online at: https://ocsd.legistar.com/Calendar.aspx. The eComment feature will be available for the duration of the meeting.
All written public comments will be provided to the legislative body and may be read into the record or compiled as part of the record.
For any questions and/or concerns, please contact the Clerk of the Board’s office at
714-593-7433. Thank you for your interest in OC San!
September 25, 2024
NOTICE OF REGULAR MEETING
OPERATIONS COMMITTEE
ORANGE COUNTY SANITATION DISTRICT
Wednesday, October 2, 2024 – 5:00 P.M.
Headquarters Building
18480 Bandilier Circle Fountain Valley, CA 92708
ACCESSIBILITY FOR THE GENERAL PUBLIC
Your participation is always welcome. Specific information as to how to participate in this meeting is detailed on the Special Notice attached to this agenda. In general, OC San offers several ways in which to interact during this meeting: you may participate in person, join the meeting live via Teams on your computer or similar device or web browser, join the meeting live via telephone, view the meeting online, and/or submit comments for consideration before or during the meeting.
The Regular Meeting of the Operations Committee of the Orange County Sanitation District will be held at the above location and in the manner indicated on Wednesday, October 2, 2024 at 5:00 p.m.
OPERATIONS COMMITTEE MEETING DATE
BOARD MEETING DATE
10/02/24 10/23/24
11/06/24 11/20/24 *
12/04/24 12/18/24 *
JANUARY DARK 01/22/25
02/05/25 02/26/25
03/05/25 03/26/25
04/02/25 04/23/25
05/07/25 05/28/25
06/04/25 06/25/25
07/02/25 07/23/25
AUGUST DARK 08/27/25
09/03/25 09/24/25
* Meeting will be held on the third Wednesday of the month
ROLL CALL OPERATIONS COMMITTEE
Engineering and Operations & Maintenance
Meeting Date: October 2, 2024 Time: 5:00 p.m.
COMMITTEE MEMBERS (14)
Pat Burns (Chair)
Bob Ooten (Vice-Chair) Joyce Ahn
Debbie Baker
Doug Chaffee
Stephen Faessel
Phil Hawkins
Johnathan Ryan Hernandez
Stephanie Klopfenstein
Scott Minikus
Schelly Sustarsic
Bruce Whitaker Ryan Gallagher (Board Chair)
Jon Dumitru (Board Vice-Chair)
OTHERS
Scott Smith, General Counsel
STAFF
Rob Thompson, General Manager Lorenzo Tyner, Assistant General Manager
Jennifer Cabral, Director of Communications
Mike Dorman, Director of Engineering Laura Maravilla, Director of Human Resources
Riaz Moinuddin, Director of Operations & Maintenance
Wally Ritchie, Director of Finance
Lan Wiborg, Director of Environmental Services Kelly Lore, Clerk of the Board
ORANGE COUNTY SANITATION DISTRICT Effective 01/23/2024 BOARD OF DIRECTORS Complete Roster
AGENCY/CITIES ACTIVE DIRECTOR ALTERNATE DIRECTOR
Anaheim
Stephen Faessel
Carlos A. Leon
Brea Christine Marick Cecilia Hupp
Buena Park Joyce Ahn Art Brown
Cypress Scott Minikus Bonnie Peat
Fountain Valley Glenn Grandis Ted Bui
Fullerton Bruce Whitaker Nick Dunlap
Garden Grove Stephanie Klopfenstein John O’Neill
Huntington Beach Pat Burns Gracey Van Der Mark
Irvine Farrah N. Khan Kathleen Treseder
La Habra Rose Espinoza Jose Medrano
La Palma Debbie Baker Mark I. Waldman
Los Alamitos Jordan Nefulda Shelley Hasselbrink
Newport Beach Brad Avery Erik Weigand
Orange Jon Dumitru John Gyllenhammer
Placentia Chad Wanke Ward Smith
Santa Ana Johnathan Ryan Hernandez Benjamin Vazquez
Seal Beach Schelly Sustarsic Lisa Landau
Stanton David Shawver Carol Warren
Tustin Ryan Gallagher Austin Lumbard
Villa Park Robbie Pitts Jordan Wu
Sanitary/Water Districts
Costa Mesa Sanitary District Bob Ooten
Art Perry
Midway City Sanitary District Andrew Nguyen Tyler Diep
Irvine Ranch Water District John Withers Douglas Reinhart
Yorba Linda Water District Phil Hawkins Tom Lindsey
County Areas
Board of Supervisors Doug Chaffee Donald P. Wagner
OPERATIONS COMMITTEE
Regular Meeting Agenda
Wednesday, October 2, 2024 - 5:00 PM
Board Room
Headquarters Building
18480 Bandilier Circle
Fountain Valley, CA 92708
(714) 593-7433
ACCOMMODATIONS FOR THE DISABLED: If you require any special disability related accommodations,
please contact the Orange County Sanitation District (OC San) Clerk of the Board’s office at (714) 593-7433 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 OC San's Headquarters Building located at 18480 Bandilier Circle, Fountain
Valley, California, and on the OC San’s website at www.ocsan.gov not less than 72 hours prior to the meeting
date and time above. All public records relating to each agenda item, including those distributed less than 72
hours prior to the meeting to a majority of the Board of Directors, are available for public inspection with the
Clerk of the Board.
AGENDA DESCRIPTION: The agenda provides a brief general description of each item of business to be
considered or discussed. The recommended action does not indicate what action will be taken. The Board of
Directors may take any action which is deemed appropriate.
MEETING RECORDING: A recording of this meeting is available within 24 hours after adjournment of the
meeting at https://ocsd.legistar.com/Calendar.aspx or by contacting the Clerk of the Board.
NOTICE TO DIRECTORS: To place items on the agenda for a Committee or Board Meeting, the item must be
submitted to the Clerk of the Board: Kelly A. Lore, MMC, (714) 593-7433 / klore@ocsan.gov at least 14 days
before the meeting. For any questions on the agenda, Board members may contact staff at:
General Manager: Rob Thompson, rthompson@ocsan.gov / (714) 593-7110
Asst. General Manager: Lorenzo Tyner, ltyner@ocsan.gov / (714) 593-7550
Director of Communications: Jennifer Cabral, jcabral@ocsan.gov / (714) 593-7581
Director of Engineering: Mike Dorman, mdorman@ocsan.gov / (714) 593-7014
Director of Environmental Services: Lan Wiborg, lwiborg@ocsan.gov / (714) 593-7450
Director of Finance: Wally Ritchie, writchie@ocsan.gov / (714) 593-7570
Director of Human Resources: Laura Maravilla, lmaravilla@ocsan.gov / (714) 593-7007
Director of Operations & Maintenance: Riaz Moinuddin, rmoinuddin@ocsan.gov / (714) 593-7269
OPERATIONS COMMITTEE Regular Meeting Agenda Wednesday, October 2, 2024
CALL TO ORDER
PLEDGE OF ALLEGIANCE
ROLL CALL AND DECLARATION OF QUORUM:
Clerk of the Board
PUBLIC COMMENTS:
Your participation is always welcome. Specific information as to how to participate in a meeting is detailed in the
Special Notice attached to this agenda. In general, OC San offers several ways in which to interact during
meetings: you may participate in person, join the meeting live via Teams on your computer or similar device or
web browser, join the meeting live via telephone, view the meeting online, and/or submit comments for
consideration before or during the meeting.
REPORTS:
The Committee Chairperson and the General Manager may present verbal reports on miscellaneous matters of
general interest to the Directors. These reports are for information only and require no action by the Directors.
CONSENT CALENDAR:
Consent Calendar Items are considered to be routine and will be enacted, by the Committee, after one motion,
without discussion. Any items withdrawn from the Consent Calendar for separate discussion will be considered in
the regular order of business.
1.2024-3858APPROVAL OF MINUTES
RECOMMENDATION:
Approve minutes of the Regular meeting of the Operations Committee held September
4, 2024.
Originator:Kelly Lore
Agenda Report
09-04-2024 Operations Committee Minutes
Attachments:
2.2024-3847CENGEN COOLING WATER PIPE REPLACEMENT AT PLANT NO. 2,
PROJECT NO. FE20-04
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Task Order limit increase of $70,000 to the Professional Design Services
Agreement with Dudek to provide professional engineering services for CenGen
Cooling Water Pipe Replacement at Plant No. 2, Project No. FE20-04, Task Order No.
FE18-00-03-03, for a total amount not to exceed $370,000.
Page 1 of 4
OPERATIONS COMMITTEE Regular Meeting Agenda Wednesday, October 2, 2024
Originator:Mike Dorman
Agenda ReportAttachments:
NON-CONSENT:
3.2024-3853ON-CALL MAINTENANCE AND REPAIR MASTER SERVICES
CONTRACTS - SPECIFICATION NO. S-2024-1447BD
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve Master Services Contracts to provide on-call maintenance and repair
services, Specification No. S-2024-1447BD, for a one-year period effective
December 1, 2024, through November 30, 2025, with two (2) one-year renewal
options in accordance with Ordinance No. OC SAN-61, Section 2.03(F) with the
qualified firms listed below for task order bids less than $500,000:
License A:
1. Charles King Company
2. Filanc
3. Jamison Engineering Contractors, Inc.
4. Kiewit Infrastructure West Co.
5. O’Connell Engineering & Construction, Inc.
6. Tharsos, Inc.
7. Vicon Enterprise Inc.
8. W.A. Rasic Construction Company, Inc.
License C-10:
1. Baker Electric & Renewables, LLC
2. Big Sky Electric, Inc.
3. LEED Electric, Inc.
4. Vistam, Inc.
License C-20:
1. Creative Air Mechanical Services
2. F.M. Thomas Air Conditioning, Inc.
3. Zia Degrees, Inc.
B. Authorize the General Manager, or designee, to add or delete firms as
necessary to maintain a qualified base of firms in accordance with Specification
No. S-2024 1447BD.
Originator:Riaz Moinuddin
Page 2 of 4
OPERATIONS COMMITTEE Regular Meeting Agenda Wednesday, October 2, 2024
Agenda Report
S-2024-1447BD - Charles King Company
S-2024-1447BD - Filanc
S-2024-1447BD - Jamison Engineering Contractors, Inc.
S-2024-1447BD - Kiewit Infrastructure West Co.
S-2024-1447BD - O'Connell Engineering & Construction, Inc
S-2024-1447BD - Tharsos, Inc.
S-2024-1447BD - Vicon Enterprise Inc.
S-2024-1447BD - W.A. Rasic Construction Company, Inc.
S-2024-1447BD - Baker Electric & Renewables, LLC
S-2024-1447BD - Big Sky Electric, Inc.
S-2024-1447BD - LEED Electric, Inc.
S-2024-1447BD - VISTAM, Inc.
S-2024-1447BD - Creative Air Mechanical Services
S-2024-1447BD - F.M. Thomas Air Conditioning, Inc.
S-2024-1447BD - Zia Degrees, Inc.
Attachments:
4.2024-3805LICENSE AGREEMENT FOR CONSTRUCTION STAGING AREA AT
PLANT NO. 2
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Temporary, Non-Exclusive and Revocable License Agreement with the City
of Newport Beach for a construction staging area, at a cost of $10 and other
consideration; with a term commencing on June 1, 2024, and terminating upon (i) the
completion of the City Projects, or (ii) December 31, 2028; in a form approved by
General Counsel.
Originator:Mike Dorman
Agenda Report
License Agreement
Attachments:
INFORMATION ITEMS:
5.2024-3398SUPERCRITICAL WATER OXIDATION UPDATE
RECOMMENDATION:
Information Item.
Originator:Rob Thompson
Agenda ReportAttachments:
Page 3 of 4
OPERATIONS COMMITTEE Regular Meeting Agenda Wednesday, October 2, 2024
DEPARTMENT HEAD REPORTS:
CLOSED SESSION:
None.
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF
ANY:
BOARD OF DIRECTORS INITIATED ITEMS FOR A FUTURE MEETING:
At this time Directors may request staff to place an item on a future agenda.
ADJOURNMENT:
Adjourn the meeting until the Regular Meeting of the Operations Committee on November 6,
2024 at 5:00 p.m.
Page 4 of 4
OPERATIONS COMMITTEE
Agenda Report
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
File #:2024-3858 Agenda Date:10/2/2024 Agenda Item No:1.
FROM:Robert Thompson, General Manager
Originator: Kelly A. Lore, Clerk of the Board
SUBJECT:
APPROVAL OF MINUTES
GENERAL MANAGER'S RECOMMENDATION
RECOMMENDATION:
Approve minutes of the Regular meeting of the Operations Committee held September 4, 2024.
BACKGROUND
In accordance with the Board of Directors Rules of Procedure,an accurate record of each meeting
will be provided to the Directors for subsequent approval at the following meeting.
RELEVANT STANDARDS
·Resolution No. OC SAN 24-09
ATTACHMENT
The following attachment(s)may be viewed on-line at the OC San website (www.ocsan.gov)with the complete agenda
package:
·September 4, 2024 Operations Committee meeting minutes
Orange County Sanitation District Printed on 9/24/2024Page 1 of 1
powered by Legistar™
Orange County Sanitation District
Minutes for the
OPERATIONS COMMITTEE
Wednesday, September 4, 2024
5:00 PM
Board Room
Headquarters Building
18480 Bandilier Circle
Fountain Valley, CA 92708
(714) 593-7433
CALL TO ORDER
A regular meeting of the Operations Committee of the Orange County Sanitation District was
called to order by Committee Chairman Pat Burns on Wednesday, September 4, 2024 at 5:00
p.m. in the Headquarters Building of the Orange County Sanitation District. Clerk of the
Board Kelly Lore led the pledge of allegiance.
ROLL CALL AND DECLARATION OF QUORUM:
The Clerk of the Board declared a quorum present as follows:
PRESENT:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
STAFF PRESENT: Rob Thompson, General Manager; Lorenzo Tyner, Assistant General
Manager; Jennifer Cabral, Director of Communications; Mike Dorman, Director of
Engineering; Laura Maravilla, Director of Human Resources; Riaz Moinuddin, Director of
Operations and Maintenance; Wally Ritchie, Director of Finance; Lan Wiborg, Director of
Environmental Services; Kelly Lore, Clerk of the Board; Mo Abiodun; Lorraine Baltierra;
Daniel Berokoff; Jon Bradley; Jackie Castro; Sam Choi; Tanya Chong; Raul Cuellar; Don
Cutler; Thys DeVries; Martin Dix; Brian Engeln; Justin Fenton; Al Garcia; David Haug; Mark
Kawamoto; Marianne Kleine; Tina Knapp; Tom Meregillano; Rob Michaels; Hyeyoung Oh; Giti
Radvar; Valerie Ratto; Kevin Schuler; Don Stokes; Thomas Vu; Brian Waite; Kevin Work; and
Ruth Zintzun were present in the Board Room. Beverly Encina was present telephonically.
OTHERS PRESENT: Matthew Richardson, General Counsel; Alex King, EIDIM; and Andres
Lopez, EIDIM were present in the Board Room. Daniel Gary was present telephonically.
PUBLIC COMMENTS:
The Clerk of the Board read a written public comment received from Daniel Gary regarding
Item No. 7.
REPORTS:
Chair Burns announced that a Special Board meeting of the Board of Directors will take place
on Friday, October 25, 2024 at 11:00 a.m. for the State of OC San at Mile Square Park Golf
Course.
Page 1 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
General Manager Rob Thompson welcomed everyone to the first meeting in the new
Headquarters Building.
CONSENT CALENDAR:
1.APPROVAL OF MINUTES 2024-3745
Originator: Kelly Lore
MOVED, SECONDED, AND DULY CARRIED TO:
Approve minutes of the Regular meeting of the Operations Committee held July 10,
2024.
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
2.PLANT WATER PIPING REPLACEMENT AT SECONDARY
CLARIFIERS 1-26 AT PLANT NO. 1, PROJECT NO. FE20-05
2023-2774
Originator: Mike Dorman
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Receive and file Bid Tabulation and Recommendation for Plant Water Piping
Replacement at Secondary Clarifiers 1-26 at Plant No. 1, Project No. FE20-05;
B. Award a Construction Contract Agreement to T.E. Roberts, Inc. for Plant Water
Piping Replacement at Secondary Clarifiers 1-26 at Plant No. 1, Project No.
FE20-05, for a total amount not to exceed $1,375,313; and
C. Approve a contingency of $137,531 (10%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
Page 2 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
3.ENGINEERING PROGRAM CONTRACT PERFORMANCE REPORT 2024-3419
Originator: Mike Dorman
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
Receive and file the Engineering Program Contract Performance Report for the period
ending June 30, 2024.
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
4.CONTROL ROOM RECONFIGURATION AT PLANT NO. 1,
CONTRACT NO. J-120A.1
2024-3694
Originator: Mike Dorman
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve Task Order No. 2 under the Master Services Agreement with ABB, Inc.
to provide services and furnish Operator Workstations for Control Room
Reconfiguration at Plant No. 1, Contract No. J-120A.1, as part of Process
Control Systems Upgrades, Project No. J-120, for a total amount not to exceed
$356,623; and
B. Approve a contingency of $35,662 (10%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
5.INSPECTION & CERTIFICATION OF OVERHEAD HOISTS & CRANES 2024-3755
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO:
Page 3 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
A. Approve a General Services Contract to Trademark Hoist, Inc. for the Inspection
and Certification of Overhead Hoists and Cranes, per Specification No.
S-2024-615BD, for a total amount not to exceed $169,189 with four optional
one-year renewal options; and
B. Approve an annual contingency of $16,919 (10%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
6.AGREEMENT FOR THE PURCHASE OF LIQUID CATIONIC
POLYMER, SPECIFICATION NO. SSJ#2808
2024-3756
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a Chemical Supplier Agreement for the Purchase of Liquid Cationic
Polymer, Specification No. SSJ#2808 with Polydyne, Inc. for a period of one (1)
year beginning February 1, 2025, through January 31, 2026; with up to four (4)
one-year optional renewal periods; for a total unit price of $3.873 per active
pound delivered plus applicable sales tax; and
B. Approve an annual unit price contingency increase of 3%.
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
7.QUARTERLY ODOR COMPLAINT REPORT 2024-3766
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO:
Receive and file the Fiscal Year 2023-24 Fourth Quarter Odor Complaint Report.
Page 4 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
8.MOBILE TELESCOPIC BOOM CRANE 2024-3768
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a purchase order to Nixon-Egli Equipment Company for the purchase of
one Mobile Telescopic Boom Crane using the Sourcewell Cooperative Contract
No. 020923-TER for an amount not to exceed $946,576; and
B. Approve a contingency of $47,329 (5%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
9.FLEET VEHICLE REPLACEMENT PURCHASES 2024-3771
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve the purchase of new and replacement vehicles for Orange County
Sanitation District’s fleet as initially approved in the adopted Fiscal Year 2024-25
Budget in the amount of $859,827; and
B. Delegate to the General Manager and Purchasing Manager the authority to
purchase new and replacement vehicles through cooperative contracts during
the fiscal year in the not to exceed amount listed above, during the fiscal year.
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
Page 5 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
10.SOUTHERN CALIFORNIA EDISON - REPLACEMENT OF THE
POWER PURCHASE AGREEMENT AT PLANT NO. 2
2024-3777
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
Approve the Net Energy Metering Interconnection Agreement (NST-497000) and
Affidavit with Southern California Edison (SCE) Company and Orange County
Sanitation District (OC San) to allow service under the Net Energy Metering (NEM-ST)
tariff.
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
11.THICKENING AND DEWATERING CENTRIFUGE GEAR UNIT
REPLACEMENTS AND SERVICE
2024-3778
Originator: Riaz Moinuddin
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a General Services Contract to GEA Mechanical Equipment US, Inc. for
the thickening and dewatering centrifuge gear unit replacements and service, for
a total amount not to exceed $2,912,178 including freight and taxes; and
B. Approve a contingency of $582,436 (20%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
Page 6 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
NON-CONSENT:
12.PRIMARY CLARIFIERS F AND G ROTATING MECHANISM
REHABILITATION AT PLANT NO. 2, PROJECT NO. FE23-09,
SPECIFICATION NO. S-2024-612BD
2024-3691
Originator: Mike Dorman
Director of Engineering Mike Dorman introduced the item and introduced Engineering
Supervisor Brian Waite who provided a PowerPoint presentation regarding the Primary
Clarifiers F & G Rotating Mechanism Rehabilitation at Plant No. 2, Project No.
FE23-09, Specification No. S-2024-612BD. The presentation included an overview of
the project site, the current condition, project scope, bid results, and recommendation.
MOVED, SECONDED, AND DULY CARRIED TO: Recommend to the Board of
Directors to:
A. Approve a Services Contract to Vicon Enterprise, Inc. for Primary Clarifiers F
and G Rotating Mechanism Rehabilitation at Plant No. 2, Project No. FE23-09,
Specification No. S-2024-612BD, for a total amount not to exceed $3,150,000;
and
B. Approve a contingency of $472,500 (15%).
AYES:Joyce Ahn, Debbie Baker, Pat Burns, Doug Chaffee, Jon Dumitru,
Stephen Faessel, Ryan Gallagher, Phil Hawkins, Stephanie
Klopfenstein, Robert Ooten and Schelly Sustarsic
NOES:None
ABSENT:Johnathan Ryan Hernandez, Scott Minikus and Bruce Whitaker
ABSTENTIONS:None
INFORMATION ITEMS:
None.
DEPARTMENT HEAD REPORTS:
None.
CLOSED SESSION:
None.
OTHER BUSINESS AND COMMUNICATIONS OR SUPPLEMENTAL AGENDA ITEMS, IF
ANY:
None.
Page 7 of 8
OPERATIONS COMMITTEE Minutes September 4, 2024
BOARD OF DIRECTORS INITIATED ITEMS FOR A FUTURE MEETING:
None.
ADJOURNMENT:
Chair Burns declared the meeting adjourned at 5:11 p.m. to the next Regular Operations
Committee meeting to be held on Wednesday, October 2, 2024 at 5:00 p.m.
Submitted by:
__________________
Kelly A. Lore, MMC
Clerk of the Board
Page 8 of 8
OPERATIONS COMMITTEE
Agenda Report
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
File #:2024-3847 Agenda Date:10/2/2024 Agenda Item No:2.
FROM:Robert Thompson, General Manager
Originator: Mike Dorman, Director of Engineering
SUBJECT:
CENGEN COOLING WATER PIPE REPLACEMENT AT PLANT NO. 2, PROJECT NO. FE20-04
GENERAL MANAGER'S RECOMMENDATION
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Task Order limit increase of $70,000 to the Professional Design Services Agreement with
Dudek to provide professional engineering services for CenGen Cooling Water Pipe Replacement at
Plant No.2,Project No.FE20-04,Task Order No.FE18-00-03-03,for a total amount not to exceed
$370,000.
BACKGROUND
The Orange County Sanitation District’s (OC San)Central Power Generation System (CenGen)at
Plant No.2 was constructed in the early 1990’s to generate electricity using digester gas.During
normal operating conditions,CenGen supplies 100%of the electricity needed to run Plant No.2
operations.Cooling water is used to keep the CenGen engines from overheating.The cooling water
is highly corrosive and has caused the existing metallic piping to develop leaks.This project will
replace the existing CenGen cooling water piping and all associated instruments and appurtenances.
Dudek was selected as part of a competitive,qualifications-based Task Order solicitation process to
design and provide construction support services for CenGen Cooling Water Pipe Replacement at
Plant No.2,Project No.FE20-04.The replacement of the cooling water instruments was added as a
Task Order amendment.
RELEVANT STANDARDS
·Sound engineering and accounting practices, complying with local, state, and federal laws
·Ensure the public’s money is wisely spent
PROBLEM
The FE20-04 construction project is behind schedule due to delays caused by the contractor.As a
result,the original budget is insufficient to cover the extended project timeline.Also,the decision to
replace the old cooling water instruments instead of reusing them used up more of the design budget
and made construction support more complex.As a result,the remaining funds allocated for the
Consultant are not enough to complete the necessary construction,commissioning,and close-out
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File #:2024-3847 Agenda Date:10/2/2024 Agenda Item No:2.
Consultant are not enough to complete the necessary construction,commissioning,and close-out
services.
This Task Order was awarded on May 18,2021,under the Annual Professional Design Services
Agreement,Contact No.FE18-00-03.The Task Order has already been authorized up to the
contractual limit of $300,000 and the current authorized amount is insufficient to complete the work.
PROPOSED SOLUTION
Increase the Task Order amount by $70,000 to the total of $370,000.
TIMING CONCERNS
The construction phase is ongoing,and the Task Order authorized limit has been met.If this
increased limit is not approved,we may run out of budget to provide the remaining task order
services to support construction.
RAMIFICATIONS OF NOT TAKING ACTION
The current budget allocated in the Task Order Services Agreement will not be enough to cover the
remaining construction support work.OC San will need to utilize staff or other services to complete
the project.
PRIOR COMMITTEE/BOARD ACTIONS
June 2018 -Approved Annual Professional Design Services Agreements with the following firms for
professional engineering design and construction support services commencing July 1,2018 with a
maximum annual fiscal year contract limitation not to exceed $600,000 for each Professional Design
Services Agreements; and approved two additional one-year optional extensions for each PDSA.
ADDITIONAL INFORMATION
The Contract issued under Task Order No.FE18-00-03-03 has a limit of $300,000 unless the Board
of Directors approves a higher amount.Although the general task order limit was recently increased
to $500,000 when OC San adopted Purchasing Ordinance OC SAN-61,this contract was not
updated.Since this increase exceeds the Task Order limit,Board authorization is required to amend
this Task Order.Since the Task Order allowed for a $300,000 limit with Board authorization,an
amendment to Contract FE18-00-03 is not required.
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with the authority levels of OC San’s Purchasing Ordinance.This item has
been budgeted (Budget FY 2024-25 and 2025-26,Section 8,Page 49,CIP Projects,Small
Construction Projects Program M-FE) and the budget is sufficient for the recommended action.
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File #:2024-3847 Agenda Date:10/2/2024 Agenda Item No:2.
ATTACHMENT
The following attachment(s)may be viewed on-line at the OC San website (www.ocsan.gov)with the complete agenda
package:
N/A
VP:lb
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OPERATIONS COMMITTEE
Agenda Report
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
File #:2024-3853 Agenda Date:10/2/2024 Agenda Item No:3.
FROM:Robert Thompson, General Manager
Originator: Riaz Moinuddin, Director of Operations & Maintenance
SUBJECT:
ON-CALL MAINTENANCE AND REPAIR MASTER SERVICES CONTRACTS -SPECIFICATION
NO. S-2024-1447BD
GENERAL MANAGER'S RECOMMENDATION
RECOMMENDATION: Recommend to the Board of Directors to:
A. Approve Master Services Contracts to provide on-call maintenance and repair services,
Specification No. S-2024-1447BD, for a one-year period effective December 1, 2024, through
November 30, 2025, with two (2) one-year renewal options in accordance with Ordinance No.
OC SAN-61, Section 2.03(F) with the qualified firms listed below for task order bids less than
$500,000:
License A:
1. Charles King Company
2. Filanc
3. Jamison Engineering Contractors, Inc.
4. Kiewit Infrastructure West Co.
5. O’Connell Engineering & Construction, Inc.
6. Tharsos, Inc.
7. Vicon Enterprise Inc.
8. W.A. Rasic Construction Company, Inc.
License C-10:
1. Baker Electric & Renewables, LLC
2. Big Sky Electric, Inc.
3. LEED Electric, Inc.
4. Vistam, Inc.
License C-20:
1. Creative Air Mechanical Services
2. F.M. Thomas Air Conditioning, Inc.
3. Zia Degrees, Inc.
B. Authorize the General Manager, or designee, to add or delete firms as necessary to maintain a
qualified base of firms in accordance with Specification No. S-2024 1447BD.
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File #:2024-3853 Agenda Date:10/2/2024 Agenda Item No:3.
BACKGROUND
The objective of the Maintenance &Repair Services Program is to provide a Task-Order based
procurement process that allows the Orange County Sanitation District (OC San)to expedite repair
services on OC San assets.These master services contracts will also benefit OC San by providing
ready access and agreed-upon response terms for urgent and emergency repairs.This procurement
process is not intended to operate on a rotational basis.The successful Contractors selected from
the Request for Qualification (RFQ)process will be offered the opportunity to bid on individual Task
Orders.Task Order Bids will be awarded to the lowest responsive bidder.Task Orders will vary in
cost not to exceed $500,000,in accordance with Ordinance No.OC SAN-61,Section 2.03 (F).
Maintenance and Repair Projects with estimates exceeding $500,000 (including change orders)will
be submitted through the formal bid procurement process (i.e.,design/bid/award/repair),including
Operations Committee/Board approval pursuant to OC San’s Purchasing Ordinance.
RELEVANT STANDARDS
·Ensure the public’s money is wisely spent
·Maintain a culture of improving efficiency to reduce the cost to provide the current service level
or standard
PROBLEM
OC San’s Purchasing Ordinance allows selection of Master Contracts for providing maintenance and
repair services to improve its efficiency in procuring goods and services required by OC San.The
current Master Services Contracts to provide on-call maintenance and repair services is set to expire
on November 30, 2024.
PROPOSED SOLUTION
Select qualified firms using the RFQ process to perform maintenance &repair services on a Task-
Order basis by offering the opportunity to bid on individual Task Orders.
TIMING CONCERNS
The existing Master Services Contracts expire November 30, 2024.
RAMIFICATIONS OF NOT TAKING ACTION
OC San will not have on-call contracts to expedite procurement of facility maintenance and repair
services,which would hamper the ability to make timely repairs and ensure the reliability of our
collection system and treatment plants.
PRIOR COMMITTEE/BOARD ACTIONS
September 2021 -Approved Master Services Contracts to provide on-call maintenance and repair
services,Specification No.S-2021-1234BD,for a one-year period effective December 1,2021
through November 30,2022,with two,one-year renewal options,in accordance with Ordinance No.
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File #:2024-3853 Agenda Date:10/2/2024 Agenda Item No:3.
through November 30,2022,with two,one-year renewal options,in accordance with Ordinance No.
OC SAN-56,Section 2.03(F),with the seven qualified firms,for bids less than $300,000:1.Jamison
Engineering Contractor,Inc.;2.Charles King Company;3.J.R.Filanc Construction Company,Inc.;4.
Shimmick Construction Company,Inc.;5.W.A.Rasic Construction Company,Inc.;6.Kiewit
Infrastructure West Co.;7.O’Connell Engineering &Construction,Inc.;and authorized the General
Manager to add or delete firms as necessary to maintain a qualified base of up to seven firms in
accordance with Specification No. S-2021-1234BD.
ADDITIONAL INFORMATION
An RFQ was issued on April 17,2024,via PlanetBids.A non-mandatory pre-qualifications meeting
was conducted at OC San facilities on May 2,2024.Statements of Qualifications (SOQ)were due
on May 30,2024.OC San received 20 SOQs,which are valid for 180 calendar days from the SOQ
due date.One proposal,Climate Pro Mechanical,was found to be non-responsive as they did not
submit their technical response and instead only uploaded the required forms.
1.Vicon Enterprise Inc.
2.W.A. Rasic Construction Company, Inc.
3.Baker Electric & Renewables LLC
4.Tiano Construction Inc.
5.Tharsos, Inc.
6.M. Brey, Inc dba MBE Construction
7.Kiewit Infrastructure West Co.
8.Filanc
9.Jamison Engineering Contractors, Inc.
10.LEED Electric, Inc.
11.Charles King Company
12.Inter-Pacific, Inc
13.Creative Air Mechanical Services
14.F.M. Thomas Air Conditioning, Inc.
15.O'Connell Engineering & Construction, Inc
16.Big Sky Electric, Inc.
17.Zia Degrees, Inc.
18.OC&C Construction
19.Vistam, Inc.
Due to the nature of the task order bids in the past,staff needed “A”Contractors as well as “C-10”&
“C-20”licensed Contractors.The Respondents were required to state which license type they were
submitting an SOQ for and based on the evaluation results,Respondents were categorized by
license type for award.
The 19 responsive Respondents were first evaluated on a pass/fail basis as required per the RFQ,
based on the following two categories:(1)financial history,and (2)safety record.Each of the 19
Respondent’s financial history and safety records were evaluated pursuant to the criteria established
in the RFQ and all 19 Respondents were deemed responsive.A five-member panel reviewed,
evaluated,and ranked the 19 Respondent’s SOQs based upon the following three categories:(1)
qualifications of the firm,(2)staff qualifications,and (3)related experience in maintenance and repair
services.Staff reviewed and ranked the proposals,and the following table summarizes the results ofOrange County Sanitation District Printed on 9/24/2024Page 3 of 4
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File #:2024-3853 Agenda Date:10/2/2024 Agenda Item No:3.
services.Staff reviewed and ranked the proposals,and the following table summarizes the results of
the rankings:
Rank Proposer Subtotal Score (Max 100%)
1 Kiewit Infrastructure West Co.89%
2 Filanc 89%
3 Jamison Engineering Contractors, Inc.85%
4 LEED Electric, Inc.84%
5 Charles King Company, Inc.78%
6 W.A. Rasic Construction Company, Inc.76%
7 Baker Electric & Renewables LLC 76%
8 Tharsos, Inc.75%
9 Big Sky Electric, Inc.75%
10 Vicon Enterprise Inc.71%
11 F.M. Thomas Air Conditioning, Inc.70%
12 O'Connell Engineering & Construction, Inc.67%
13 Creative Air Mechanical Services 60%
14 Zia Degrees, Inc.56%
15 Vistam, Inc.56%
16 M. Brey, Inc dba MBE Construction 46%
17 OC&C Construction 30%
18 Tiano Construction, Inc.23%
19 Inter-Pacific, Inc.16%
Based on the results,staff recommends approving Master Services Contracts with the top 15 ranked
Contractors (Proposers).
CEQA
N/A
FINANCIAL CONSIDERATIONS
This request complies with the authority levels of OC San’s Purchasing Ordinance.This item has
been budgeted (Budget FY 2024-25 and 2025-26,Section 6,Page 16,Repair &Maintenance)and
the budget is sufficient for the recommended action.
ATTACHMENT
The following attachment(s)may be viewed on-line at the OC San website (www.ocsan.gov)with the complete agenda
package:
·Master Services Contracts
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Master Services Contract 1 of 21 Specification No. S-2024-1447BD Revision 032824
MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Charles King Company (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
Master Services Contract 2 of 21 Specification No. S-2024-1447BD Revision 032824
a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
Master Services Contract 3 of 21 Specification No. S-2024-1447BD Revision 032824
restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
Master Services Contract 4 of 21 Specification No. S-2024-1447BD Revision 032824
5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
Master Services Contract 5 of 21 Specification No. S-2024-1447BD Revision 032824
6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
Master Services Contract 6 of 21 Specification No. S-2024-1447BD Revision 032824
Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Steven Radaich Vice President Charles King Company 2841 Gardena Ave. Signal Hill, CA 90755 steve@ckc.co 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager CHARLES KING COMPANY Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Filanc (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: David J. Kiess Vice President Filanc 740 N Andreasen Dr. Escondido, CA 92029 dkiess@filanc.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager FILANC Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
Master Services Contract 1 of 21 Specification No. S-2024-1447BD Revision 032824
MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Jamison Engineering Contractors, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Kathy Jamison Vice President/Secretary Jamison Engineering Contractors, Inc. 2525 S. Yale St. Santa Ana, CA 92704 jamisoneng@msn.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager JAMISON ENGINEERING CONTRACTORS, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Kiewit Infrastructure West Co. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
Master Services Contract 19 of 21 Specification No. S-2024-1447BD Revision 032824
Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Stan M. Driver Senior Vice President Kiewit Infrastructure West Co. 10704 Shoemaker Ave. Santa Fe Springs, CA 90670 stan.driver@kiewit.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager KIEWIT INFRASTRUCTURE WEST CO. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and O’Connell Engineering & Construction, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Rhonda O’Connell President O’Connell Engineering & Construction, Inc. 36572 Deauville Rd. Winchester, CA 92596 Rhonda@oconnelleng.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager O’CONNELL ENGINEERING & CONSTRUCTION, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Tharsos Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Michael Lopez President Tharsos Inc. 7839 University Ave., Suite 210 La Mesa, CA 91942 mlopez@tharsosinc.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager THARSOS INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Vicon Enterprise Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Telvis Artis President Vicon Enterprise Inc. 5433 E Spyglass Way Anaheim, CA 92807 tartis@vicon.io 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager VICON ENTERPRISE INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and W.A. Rasic Construction Company, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Peter L. Rasic President W.A. Rasic Construction Company, Inc. 4150 Long Beach Blvd. Long Beach, CA 90807 prasic@warasic.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager W.A. RASIC CONSTRUCTION COMPANY, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Baker Electric & Renewables LLC (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Harold Carlisle Sr. Director – Service & Special Projects Baker Electric & Renewables LLC 1298 Pacific Oaks Place Escondido, CA 92029 hcarlisle@baker-electric.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager BAKER ELECTRIC & RENEWABLES LLC Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Big Sky Electric, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Chris Livingston Vice President Big Sky Electric, Inc. 310 McArthur Way, Suite A Upland, CA 91786 clivingston@bigskyelectric.com
36.2 Each party shall provide the other party written notice of any change in address as soon as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager BIG SKY ELECTRIC, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and LEED Electric, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Seyed A. Jamali Dinan CEO LEED Electric, Inc. 13138 Arctic Circle Santa Fe Springs, CA 90670 sdinan@leedelectric.com
36.2 Each party shall provide the other party written notice of any change in address as soon as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager LEED ELECTRIC, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
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F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and VISTAM, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Ivan Kevin S. Fronda Associate Vice President VISTAM, Inc. 16037 Avenida San Miguel La Mirada, CA 90638 ivan@vistam.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager VISTAM, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Creative Air Mechanical Services, LLC (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Chris Rochon Partner Creative Air Mechanical Services, LLC 6316 Seawalk Drive Playa Vista, CA 90094 chris@creativeairmechanical.com
36.2 Each party shall provide the other party written notice of any change in address as soon as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager CREATIVE AIR MECHANICAL SERVICES, LLC Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
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F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and F.M. Thomas Air Conditioning, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Tom Feyka President F.M. Thomas Air Conditioning, Inc. 231 Gemini Ave. Brea, CA 92821 tfeyka@fmthomas.com
36.2 Each party shall provide the other party written notice of any change in address as soon as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager F.M. THOMAS AIR CONDITIONING, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
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F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
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II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
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MASTER SERVICES CONTRACT Maintenance & Repair Services Specification No. S-2024-1447BD
This MASTER SERVICES CONTRACT (hereinafter referred to as “Contract”), is made and entered into as of the date fully executed below, by and between Orange County Sanitation District (hereinafter referred to as “OC San”) and Zia Degrees, Inc. (hereinafter referred to as “Contractor”), and collectively referred to herein as the “Parties.” R E C I T A L S WHEREAS, OC San desires to retain the services of Contractor for Maintenance and Repair
Services (“Services”) as described in Exhibit “A” attached hereto and incorporated herein by this reference; and WHEREAS, Contractor is qualified to perform the Services by virtue of experience, training, education, and expertise; and
WHEREAS, OC San desires to engage Contractor to provide the Services; and WHEREAS, OC San selected Contractor to provide the Services in accordance with OC San’s
current Purchasing Ordinance; and WHEREAS, on October 23, 2024, OC San’s Board of Directors, by minute order, authorized
execution of this Contract. NOW, THEREFORE, in consideration of the above recitals and the mutual promises and benefits specified below, the Parties agree as follows:
1. General. 1.1 This Contract and all exhibits hereto are made by OC San and the Contractor. The terms and conditions herein exclusively govern the purchase of Services as described in the Scope of Services, attached hereto and incorporated herein by reference as Exhibit “A”. 1.2 All Task Order awarded under this Master Services Contract shall be incorporated by
reference and made part hereof, upon issuance of the Notice to Proceed of a Task Order. 1.3 The following exhibits are incorporated by reference and made part of this Contract as
though fully set forth at length herein. Exhibits to this Contract are as follows: Master Services Contract Exhibit “A” – Scope of Services
Master Services Contract Exhibit “B” – General Conditions Master Services Contract Exhibit “C” – Determined Insurance Requirement Form Master Services Contract Exhibit “D” – Contractor Safety Standards Master Services Contract Exhibit “E” – Human Resources Policies 1.4 In the event of any conflict or inconsistency between the provisions of this Contract, provisions of the Task Order(s) and any of the provisions of the exhibits hereto, the provisions in the document highest in precedence shall be controlling. The order of precedence of the applicable documents is set forth below:
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a. Master Services Contract Addenda – the last addendum issued will have the highest
precedence b. Master Services Contract, and any amendments thereto c. Master Services Contract Exhibit “A” – Scope of Services
d. Master Services Contract Exhibit “B” – General Conditions e. Master Services Contract Exhibit “C” – Determined Insurance Requirement Form f. Master Services Contract Exhibit “D” – Contractor Safety Standards g. Master Services Contract Exhibit “E” – Human Resources Policies h. Individual Task Order, inclusive of:
• Permits and other regulatory requirements
• Task Order Exhibit A - Scope of Services
1.5 The provisions of this Contract and exhibits hereto are applicable at the Task Order level. It is OC San’s intent that all use of the word “Contract” in Exhibit “A” and the Task Order Exhibits thereto shall also mean Task Order. 1.6 The provisions of this Contract and provisions of the Task Order(s) may be amended or waived only by an amendment executed by authorized representatives of both Parties. 1.7 Except as expressly provided otherwise, OC San accepts no liability for any expenses, losses, or actions incurred or undertaken by Contractor as a result of work performed in anticipation of acquisition of the Services by OC San.
1.8 The term “hours”, when used in this Contract, shall be defined in the Request for Task Order Bid, Exhibit “A” Task Order Scope of Services.
1.9 Days: Shall mean calendar days, unless otherwise noted.
1.10 OC San holidays (non-working days) are as follows: New Year’s Day, Martin Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Day after Thanksgiving, Christmas Eve, and Christmas Day. 1.11 Work: Shall mean all work, labor, and materials necessary to provide the Services. 1.12 The various headings in this Contract are inserted for convenience only and shall not affect the meaning or interpretation of this Contract or any paragraph or provision hereof. 2. Scope of Services. 2.1 Contractor shall perform the Services according to the Master Services Contract Exhibit “A” – Scope of Services and as identified in the individual Task Order Scope of Services, all in accordance with generally accepted industry and professional standards.
2.2 Modifications to Scope of Services. OC San shall have the right to modify the individual Task Order Scope of Services at any time. All modifications must be made by an amendment or change order signed by both Parties. Refer to Master Services Contract
Exhibit “B” - General Conditions, including the sections entitled REQUEST FOR CHANGE (CHANGES AT CONTRACTOR’S REQUEST) and OWNER INITIATED CHANGES.
2.3 Familiarity with Work. By executing this Contract, Contractor warrants that: (a) it has investigated the Work to be performed; (b) it understands the facilities, difficulties, and
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restrictions of the Work under this Contract; and (c) it has examined the site of the work
and is aware of all conditions at the site. Should Contractor discover any latent or unknown condition materially differing from those inherent in the Work or as represented by OC San, it shall immediately inform OC San of this and shall not proceed, except at
Contractor’s risk, until written instructions are received from OC San. 2.4 Performance. Time is of the essence in the performance of this Contract, Task Order(s) and the provisions hereof. 3. Contract Term. 3.1 The term of this Contract shall be for one (1) year commencing on December 1, 2024, and continuing through November 30, 2025.
3.2 The Contract shall remain in effect until all Task Orders have been completed and accepted by OC San. Any Work or Services that is required by a Task Order and is not finished by the date of termination shall be continued and completed by the Contractor and the terms and conditions of this Contract shall continue in effect for that time.
3.3 Renewals. At its sole discretion, OC San may exercise the option to renew this Contract for up to two (2) one-year periods as mutually agreed upon between both Parties. OC San shall have no obligation to renew the Contract nor to give a reason if it elects not to
renew it. 3.4 Extensions. The term of this Contract may be extended only by an amendment signed
by both Parties. 3.5 Task Order Extensions. The term of Task Order may be extended only by an amendment or change order signed by both Parties. Refer to Master Services Contract Exhibit “B” - General Conditions, including the section entitled EXTENSION OF TIME FOR DELAY 4. Compensation. 4.1 The specific amount of compensation payable to the Contractor for services rendered on an individual Task Order, shall be established for each Task Order and shall not exceed Five Hundred Thousand Dollars ($500,000) per individual Task Order. The Contractor agrees and acknowledges that the execution of this Contract does not in any way
guarantee that a Task Order will be issued to the Contractor. Moreover, execution of this Contract shall not entitle the Contractor to any form of payment or compensation from OC San without OC San first having issued a written Task Order.
4.2 Contractor shall provide OC San with all required premiums and/or overtime work at no charge beyond the price provided under the individual Task Order.
5. Payments and Invoicing. 5.1 Each individual Task Order shall specify the method of payment to be used. Payment may be based on milestones, lump sum or monthly methods. 5.1.1 Milestones: Payments shall be made upon approval by OC San Project Manager or his designee, of invoices submitted for milestones completed as described in the Task Order. OC San, in its sole discretion, shall determine whether tasks and deliverables for each milestone has been satisfactorily completed.
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5.1.2 Lump Sum: Payment will be made in one lump sum after completion and
acceptance of the Services. OC San, at its sole discretion, shall be the determining party as to whether the Services has been satisfactorily completed.
5.1.3 Monthly: OC San shall pay monthly for Services rendered. OC San shall be the determining party, in its sole discretion, as to whether the Services have been satisfactorily completed. 5.2 OC San shall pay itemized invoices for Work completed in accordance with individual Task Order thirty (30) days from receipt of the invoice and after approval by OC San’s Project Manager or designee.
5.3 Contractor shall submit its invoices to OC San Accounts Payable by electronic mail to APStaff@OCSan.gov. In the subject line include “INVOICE” and the Purchase Order Number. 6. California Department of Industrial Relations Registration and Record of Wages. 6.1 To the extent Contractor’s employees and/or its subcontractors perform Work related to
this Contract for which Prevailing Wage Determinations have been issued by the California Department of Industrial Relations (DIR) as more specifically defined under Labor Code section 1720 et seq., prevailing wages are required to be paid for applicable
Work under this Contract. It is Contractor’s responsibility to interpret and implement any prevailing wage requirements and Contractor agrees to pay any penalty or civil damages resulting from a violation of the prevailing wage laws.
6.2 Contractor and its subcontractors shall comply with the registration requirements of Labor Code section 1725.5. Pursuant to Labor Code section 1771.4(a)(1), the Work is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (DIR). 6.3 Pursuant to Labor Code section 1773.2, a copy of the prevailing rate of per diem wages is available upon request at OC San’s principal office. The prevailing rate of per diem wages may also be found at the DIR website for prevailing wage determinations at http://www.dir.ca.gov/DLSR/PWD.
6.4 Contractor and its subcontractors shall comply with the job site notices posting requirements established by the Labor Commissioner per Title 8, California Code of Regulations section 16461(e). Pursuant to Labor Code sections 1773.2 and
1771.4(a)(2), Contractor shall post a copy of the prevailing rate of per diem wages at the job site.
6.5 Contractor and its subcontractors shall maintain accurate payroll records and shall comply with all the provisions of Labor Code section 1776. Contractor and its subcontractors shall submit payroll records to the Labor Commissioner pursuant to Labor Code section 1771.4(a)(3). Pursuant to Labor Code section 1776, the Contractor and its subcontractors shall furnish a copy of all certified payroll records to OC San and/or the general public upon request, provided the public request is made through OC San, the Division of Apprenticeship Standards, or the Division of Labor Standards Enforcement of the Department of Industrial Relations. Pursuant to Labor Code section 1776(h), penalties for non-compliance with a request for payroll records may be deducted from progress payments.
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6.5.1 As a condition to receiving payments, Contractor agrees to present to OC San,
along with any request for payment, all applicable and necessary certified payrolls and other required documents for the period covering such payment request. Pursuant to Title 8, California Code of Regulations section 16463, OC San shall
withhold any portion of a payment, up to and including the entire payment amount, until certified payroll forms and any other required documents are properly submitted. In the event certified payroll forms do not comply with the requirements of Labor Code section 1776, OC San may continue to withhold sufficient funds to cover estimated wages and penalties under the Contract. 6.6 The Contractor and its subcontractors shall comply with Labor Code section 1774 and section 1775. Pursuant to Labor Code section 1775, the Contractor and any of its
subcontractors shall forfeit to OC San a penalty of not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any work. 6.6.1 In addition to the penalty and pursuant to Labor Code section 1775, the difference
between the prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the prevailing wage rate shall be paid to each worker by the Contractor or its
subcontractor. 6.7 Contractor and its subcontractors shall comply with Labor Code sections 1810 through 1815. Contractor and its subcontractors shall restrict working hours to eight (8) hours per day and forty (40) hours per week, except that work performed in excess of those limits shall be permitted upon compensation for all excess hours worked at not less than one and one-half (1.5) times the basic rate of pay, as provided in Labor Code section 1815. The Contractor shall forfeit, as a penalty to OC San, twenty-five dollars ($25) per worker
per calendar day during which such worker is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week in violation of Labor Code sections 1810 through 1815.
6.8 Contractor and its subcontractors shall comply with Labor Code sections 1777.5, 1777.6, and 1777.7 concerning the employment of apprentices by Contractor or any
subcontractor. 6.9 Contractor shall include, at a minimum, a copy of the following provisions in any contract it enters into with any subcontractor: Labor Code sections 1771, 1771.1, 1775, 1776, 1777.5, 1810, 1813, 1815, 1860, and 1861. 6.10 Pursuant to Labor Code sections 1860 and 3700, the Contractor and its subcontractors will be required to secure the payment of compensation to employees. Pursuant to Labor Code section 1861, Contractor, by accepting this contract, certifies that: “I am aware of the provisions of section 3700 of the Labor Code which require
every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work of
this Contract.”
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Contractor shall ensure that all its contracts with its subcontractors provide the provision
above. 7. Damage to OC San’s Property. Any of OC San’s property damaged by Contractor, any
subcontractor, or by the personnel of either will be subject to repair or replacement by Contractor at no cost to OC San. 8. 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 Contract. 9. Audit Rights. Contractor agrees that, during the term of this Contract and for a period of three
(3) years after its expiration or termination, OC San 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 Contract. 10. Contractor Safety Standards and Human Resources Policies. OC San requires Contractor and its subcontractor(s) to follow and ensure their employees follow all Federal, State, and
local regulations as well as the Contractor Safety Standards while working at OC San locations. If, during the course of the Contract, it is discovered that the Contractor Safety Standards do not comply with Federal, State, or local regulations, the Contractor is required to follow the
most stringent regulatory requirement at no additional cost to OC San. Contractor, its subcontractors, and all of their employees shall adhere to the safety requirements in Exhibit “A,” all applicable Contractor Safety Standards in Exhibit “D,” and the Human Resources
Policies in Exhibit “E.” 11. Insurance. Contractor and all its subcontractors shall purchase and maintain, throughout the term of this Contract and any periods of warranty or extensions, insurance in amounts equal to the requirements set forth in the signed Exhibit “C” – Determined Insurance Requirement Form. Contractor shall not commence Work under this Contract until all required insurance is obtained in a form acceptable to OC San, 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 obtain and maintain the required insurance coverage shall result in termination of this Contract. Nothing contained in these insurance requirements is to be construed as limiting the liability of the Contractor or the Contractor’s Sureties.
12. Bonds. Contractor shall, before entering upon the performance of any Task Order awarded under this Contract, furnish bonds, if required as specified in an individual Request for Task
Order Bid. The form of each bond shall be provided in the Request for Task Order Bid. The bonds shall be approved by OC San’s General Counsel – one in the amount of one hundred percent (100%) of the Task Order amount, to guarantee the faithful performance of the Work,
and the other in the amount of one hundred percent (100%) of the Task Order amount, to guarantee payment of all claims for labor and materials furnished. Task Order shall not become effective until such bonds are supplied to and accepted by OC San. Bonds must be issued by a California admitted surety and must be maintained throughout the life of the Task Order and during the warranty period. Contractor is hereby notified that it is required that the person executing the Bonds either (1) attach a power of attorney authorizing the person who executed the bond to do so for and on behalf of the insurer; or (2) must have on file with the County Clerk, County of Orange, a Power of Attorney and authorization to execute said Bonds for and on behalf of the corporate surety.
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The purpose of this requirement is to insure that the provisions of Code of Civil Procedure
Section 995.630 requiring such authority to be on file with the Orange County Clerk are satisfied in order for the OC San and its officers to approve the bond. 13. General Indemnification. The Contractor shall, with respect to all Work covered by or incidental to these Contract Documents, be responsible for any liability imposed by law and shall indemnify, defend and hold OC San, the ENGINEER, the CONSULTANT and its subconsultants, and each of their directors, officers, agents and employees, and all public entities issuing permits to the Contractor, free and harmless from and against all of the following: Any claim, suit or action of every name, kind, and description, loss, damage, cost, expenses,
including reasonable attorney’s fees and expert fees, costs of compliance with administrative orders and directives, litigation, arbitration, awards, fines, and administratively or judicially-imposed penalties or judgments, arising by reason of death or bodily injury to person(s), injury to property, or other loss, damage or expense, resulting from the construction or performance of the Work, design defects (if design originated by the Contractor only), defects in the Work, or by or on account of acts, errors or omissions of the Contractor or Contractor’s
Subcontractors, Suppliers, employees, invitees, or agents or from any other cause whatsoever arising during the progress of the Work or at any time prior to its completion and Final Acceptance, including any of the same resulting from OC San’s alleged or actual acts, errors,
or omissions regardless of whether on or off of the worksite. Said responsibility shall extend to claims, demands or liability for loss, damage or injuries occurring or discovered after completion of the Work, as well as during the progress of the Work. However, the Contractor
shall not be obligated under this Contract to indemnify OC San, the ENGINEER or its CONSULTANT(s) with respect to the active negligence, sole negligence or willful misconduct of OC San, the ENGINEER, or its CONSULTANT(s). In addition, if any action is brought against the Contractor or any Subcontractor to enforce a stop payment notice or Notice to Withhold, which names OC San as a party to said action, OC San shall be entitled to reasonable
attorney’s fees, costs and necessary disbursements arising out of the defense of such action by OC San. OC San shall be entitled to deduct its costs for any stop payment notice filed, whether court action is involved or not. In any and all claims against the indemnified parties by an employee of the Contractor, any Subcontractor, any Supplier, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation as specified herein shall not be limited in any way by the amount or type of damages, compensation, or benefits payable by or for the Contractor, or any Subcontractor, or any Supplier or other person under Workers’ Compensation acts, disability benefit acts, or other employee acts. The obligations of the Contractor as specified herein shall not extend to the liability of the ENGINEER, the CONSULTANT or its subconsultants, and each of their directors, officers, agents and employees, arising out of or resulting from or in connection with the preparation of approval of maps, Drawings, opinions, reports, surveys, designs or Specifications, provided that the foregoing was the sole and exclusive cause of the loss, damage or injury.
The Contractor shall also be responsible for and shall indemnify, defend and hold harmless OC San, the ENGINEER the CONSULTANT and its subconsultants, and each of their directors, officers, employees, and agents from and against all losses, expenses, damages (including damages to the Work itself), attorney’s fees, and other costs, including all costs of defense, which any of them may incur with respect to the failure, neglect, or refusal of the
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Contractor to faithfully perform the Work and all of the Contractor’s obligations under the
Contract. Such costs, expenses, and damages shall include all costs, including attorney’s fees incurred by the indemnified parties in any lawsuit to which they are a party.
In the event Contractor or its insurer refuses or fails to provide a legal defense to OC San after receiving written notice of the legal action and a tender and demand for defense, OC San shall have the right to select counsel of its own choice to represent all the interests of OC San at Contractor’s cost and expense. Contractor agrees that the amount of legal costs and expenses, including attorneys’ fees, may be withheld by OC San from any Contract amounts due and owing to Contractor until such time as a final determination is made as to the responsibility for payment of said fees and costs. Contractor further agrees that to the extent OC San incurs such damages and the damages exceed any remaining Contract amounts due
and owing to Contractor, Contractor shall reimburse OC San for all such additional damages upon demand by OC San for the same. Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. 14. Independent Contractor. The relationship between the Parties hereto is that of an independent contractor and nothing herein shall be deemed to make Contractor an OC San employee. During the performance of this Contract and any Task Order, Contractor and its
officers, employees, and agents shall act in an independent capacity and shall not act as OC San’s officers, employees, or agents. Contractor and its officers, employees, and agents shall obtain no rights to any benefits which accrue to OC San’s employees.
15. Subcontracting and Assignment. Contractor shall not delegate any duties nor assign any rights under this Contract and any Task Order without the prior written consent of OC San. Subcontractors not specifically listed in the Task Order Bid will not be recognized as such and will not be allowed to work on the Task Order/Project unless the value of said Work is less than one-half of one percent (1/2%) of the total Task Order Price. All persons engaged in the Work of the Task Order will be considered as employees of the Contractor, and not as independent contractors. No assignment of any portion of the Work or of any obligation or duty under the Contract or Task Order is permitted without the express prior written consent of OC San, and as otherwise authorized by the Contract Documents. Any such attempted delegation or assignment shall be void.
16. Disclosure. Contractor agrees not to disclose, to any third party, data or information generated from this Contract and any Task Order without the prior written consent from OC
San. 17. Non-Liability of OC San Officers and Employees. No officer or employee of OC San shall
be personally liable to Contractor, or any successor-in-interest, in the event of any default or breach by OC San, or for any amount which may become due to Contractor or to its successor, or for breach of any obligation under the terms of this Contract and any Task Order. 18. Third-Party Rights. Nothing in this Contract and any Task Order shall be construed to give any rights or benefits to anyone other than OC San and 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 OC San harmless from any and all damages and liabilities assessed against OC San as a result of
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Contractor’s noncompliance therewith. Any provision required by law to be included herein
shall be deemed included as a part of this Contract and any Task Order whether or not specifically included or referenced. 20. Licenses, Permits, Ordinances, and Regulations. Contractor represents and warrants to OC San that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to provide the Services. Any and all fees required by Federal, State, County, City, and/or municipal laws, codes, and/or tariffs that pertain to the Work performed under this Contract and any Task Order will be paid by Contractor. 21. Regulatory Requirements. Contractor shall perform all Work under this Contract and any Task Order in strict conformance with applicable Federal, State, and local regulatory
requirements including, but not limited to, 40 CFR 122, 123, 124, 257, 258, 260, 261, and 503, Title 22, 23, and Water Codes Division 2. 22. Environmental Compliance. Contractor shall, at its own cost and expense, comply with all Federal, State, and local environmental laws, regulations, and policies which apply to the Contractor, its subcontractors, and the Services, including, but not limited to, all applicable
Federal, State, and local air pollution control laws and regulations. 23. South Coast Air Quality Management District’s Requirements. It is Contractor’s
responsibility to ensure that all equipment furnished and installed comply 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 SCAQMD. 24. Dispute Resolution. 24.1 In the event of a dispute as to the construction or interpretation of this Contract, 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. 24.2 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 Code of Civil Procedure, Part 3, Title 9, sections 1280 et 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 (2) arbitrators shall select a third. Discovery may be conducted in connection with the arbitration proceeding pursuant to Code of Civil Procedure section 1283.05. The arbitrator, or three (3) 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 arbitrator’s 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.
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25. Liquidated Damages. Liquidated damages (Liquidated Damages), if any, shall be specified in
Task Order. In the event the Contractor fails to achieve Final Completion of the Task Order within the required period of performance or fails to meet any other time requirements set forth in the Task Order, including the timely submittal or update of the Task Order Schedule or
achievement of any designated milestones or deadline as required in the approved Task Order Bid Price Form, after due allowance for extensions of time made in accordance with the Contract Documents, if any, OC San will sustain damage which would be extremely difficult and impracticable to ascertain. The Parties therefore agree that in each such event, Contractor will pay to OC San a determined sum per day, as Liquidated Damages, and not as a penalty, for each and every calendar day during which Final Completion of the Task Order is so delayed, or timely submittal or update of the Task Order Schedule is so delayed. If deadlines for milestones are identified in the approved Task Order, Contractor shall pay OC San the
Liquidated Damage amount corresponding to that milestone for each and every day during which the achievement of the milestone is delayed. Contractor agrees to pay such Liquidated Damages and further agrees that OC San may offset the amount of Liquidated Damages from any monies due or that may become due to the Contractor under the Task Order. Contractor also agrees that to the extent the amount of Liquidated Damages exceeds any monies due to the Contractor under the Task Order, Contractor shall pay all such amounts to OC San upon
demand. Liquidated Damages due to delays in achieving a milestone or deadline will not be credited toward Liquidated Damages due to delays in achieving subsequent milestones, deadlines or Final Completion of the Task Order. If this provision is found for any reason to be
void, invalid, or otherwise inoperative so as to disentitle OC San from claiming Liquidated Damages, OC San is entitled to claim against the Contractor damages at law for the Contractor’s failure to complete the Work of the Task Order by the Final Completion date. 26. Remedies. In addition to other remedies available in law or equity, if the Contractor fails to make delivery of the goods and Services or repudiates its obligations under this Contract, or if OC San rejects the goods or Services or revokes acceptance of the goods and Services, OC San may (a) cancel the Contract; (b) recover whatever amount of the purchase price OC San has paid, and/or (c) “cover” by purchasing, or contracting to purchase, substitute goods and Services for those due from Contractor. In the event OC San elects to “cover” as described in (c), OC San shall be entitled to recover from Contractor as damages the difference between the cost of the substitute goods and Services and the Contract price, together with any incidental or consequential damages. 27. Force Majeure. Neither party shall be liable for delays caused by acts of a public enemy; fires; floods; explosions; epidemics; quarantine restrictions; blockades; freight embargoes; strikes; boycotts; labor disputes; demonstrations; earthquakes; tidal waves; hurricanes; landslides;
tornados; pandemics; epidemics; shortage of, or inability to obtain materials or reasonably acceptable substitute materials; acts of terror or terrorism; unreasonable delays in issuing necessary Permits or approvals or conducting inspections not caused by Contractor; the
inability to obtain easements, licenses, dedications, approvals or title required for utilities not caused by Contractor; power outages; war and related causes; nuclear perils; explosion or nuclear, radioactive, chemical or biological contamination not caused by Contractor; any adverse or inclement weather conditions, including thunderstorms, lighting, tornadoes and other windstorms; or other actions outside of the control of Contractor, including acts of god. Work affected by a force majeure condition may be rescheduled by mutual consent of the Parties provided that Contractor shall have given OC San written notice of the force majeure condition within fifteen (15) days thereof.
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28. Termination.
28.1 Termination for Convenience. OC San reserves the right to terminate this Contract for its convenience, with or without cause, in whole or in part, at any time, at its own discretion or when conditions encountered during the Work make it impossible or impracticable to
proceed, or when OC San is prevented from proceeding with the Contract by act of God, by law, or by official action of a public authority, or upon a determination that such termination is in the best interest and convenience of OC San, or whenever OC San is prohibited from completing the Work for any reason, by written notice from OC San of intent to terminate. Upon receipt of such written notice of termination, Contractor shall:
1. Immediately stop all Work under this Contract and the Task Order (unless the notice directs otherwise);
2. Terminate all orders and Subcontractors except as necessary to complete Work which is not terminated;
3. If directed in writing by OC San to do so, assign all right, title and interest in subcontracts and materials in progress, in which case OC San will have the right at
its discretion to settle, or pay any or all claims arising out of the termination of such Subcontractors, but in no event shall recovery by any Contractor include lost profits for uncompleted portions of Work;
4. Deliver or otherwise make available to OC San all data, Drawings, Specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the Contractor in performing this Contract and the Task Order whether completed or in process;
5. Settle outstanding liabilities and claims with the approval of OC San;
6. Complete performance of such part of the Work as has not been terminated; and
7. Take such other actions as may be necessary, or as may be directed by OC San for the protection and preservation of the Project and/or property related to the
Contract and Task Order. Upon receipt of OC San’s written notice of termination for convenience, and within a period of 15 to 30 days, as determined by the ENGINEER at the time of termination, the Contractor shall submit to the ENGINEER a termination proposal which shall include, but is not limited to, the Contractor’s estimated costs to be incurred by the Contractor as a
result of the termination for convenience, and as allowed by the Contract Documents, including all documentation to support such costs; the status of the Work at time of termination; the status of termination of the Contractor’s Subcontractor(s) and Supplier(s) agreement(s) including the amount of each said agreement, amount paid under each agreement up to the date of termination, and the amount that currently remains due and owing under each agreement for Work completed as of the date of termination, if any; a
list, certified as to quantity and quality, of termination inventory not previously disposed of, excluding items authorized for disposition by the ENGINEER; and any other information and/or documentation as required by OC San. Upon receipt of OC San’s written notice of termination for convenience, the Contractor
shall submit to the ENGINEER, within thirty (30) days, a request for final payment. The
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final payment to the Contractor after termination for convenience shall be limited to
amounts due and owing under the Contract at time of termination, including the following: 1. Any actual costs incurred by the Contractor for restocking charges;
2. The agreed upon price of protecting the Work in any manner, if any, as directed by OC San;
3. The cost of settling and paying claims arising out of the termination of the Work under subcontract agreements or orders with OC San’s approval, as specified above, exclusive of the of the amounts paid or payable on account of goods delivered or Work furnished by Subcontractor prior to the effective date of the termination; and
4. The actual costs incurred by the Contractor allocable to the portion of the Work
properly performed or goods supplied by the Contractor as of the date of
termination, reduced by any sums previously paid to the Contractor.
Contractor expressly waives any claim to receive anticipated profits to be earned during the uncompleted portion of this Contract and the Task Order. Such notice of termination shall terminate this Contract and the Task Order, and release OC San from any further
fee, cost, or claim hereunder by Contractor other than for Work performed through the date of termination.
OC San shall have the right to withhold any portion or the whole of the final payment under this provision in the event there are any outstanding claims for compensation asserted by OC San against the Contractor, or by any third party against OC San which arises out of the Contractor’s Work. All OC San’s property in the possession or control of the Contractor shall be returned by the Contractor to OC San on demand, or at the termination of this Contract, whichever occurs first.
28.2 Termination for Default. OC San reserves the right to terminate this Contract immediately upon OC San’s determination that Contractor is not complying with the Scope of Services requirements, if the level of service is inadequate, or for any other default of this Contract and any Task Order. If the Contractor refuses or fails to prosecute the Work in any awarded Task Order or any separable part thereof with such diligence
as will ensure its completion within the time specified herein, or any authorized extension thereof, or fails to perform the Work in a manner required by the Contract Documents and/or industry standards, or fails to complete such Work within such time as required
under the Task Order and the Contract Documents or, if the Contractor should be adjudged as bankrupt, or is otherwise deemed insolvent by OC San based on good cause and is unable to proceed with the Work, or if the Contractor should make a general assignment for the benefit of creditors, or if a receiver should be appointed on account of insolvency, or if the Contractor files a petition to take advantage of any debtor’s act, or should any Subcontractor violate any of the provisions of the Contract and the Task Order, or if the Contractor should persistently or repeatedly refuse or fail, except in cases for which an authorized extension of time is provided, to supply enough properly skilled
workers or proper materials to complete the Work in the time specified, or if the Contractor should fail to make prompt payment to Subcontractors for material or labor, or if the Contractor should persistently disregard laws, or instructions given by OC San, or if the
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Contractor otherwise substantially fails to fulfill its obligations under the Contract
Documents and the Task Order, OC San may, without prejudice to any other right or remedy, serve written notice upon the Contractor and Sureties of OC San’s intention to terminate the Contract and the Contractor’s performance under the Task Order. Said
notice shall contain the reasons for such intention to terminate the Contract and the Contractor’s performance under the Task Order, and unless, within ten (10) days after the service of such notice, such violations cease and/or satisfactory arrangements for the corrections thereof have been made, the OC San may terminate the Contract and Contractor’s performance under the Task Order and the Contractor shall not be entitled to receive any further payment until the Work is finished. In the event of any such termination, OC San shall serve written notice thereof upon the
Surety and Contractor, and the Surety shall have the right to take over and perform the Work under the Task Order. However, if the Surety, within five (5) days after the service of a notice of termination, does not give OC San written notice of its intention to take over and perform the Task Order, and if it serves such notice of its intent to take over and perform the Work under the Task Order and does not begin performance thereof within fifteen (15) days from the date of serving said notice, OC San may take over the Work
and prosecute the same to completion by contract or by any other method it may deem advisable for the account and at the expense of the Contractor, and the Sureties and/or Contractor shall be liable to OC San for any excess cost or other damage incurred by OC
San thereby. In such an event OC San may without liability for so doing, take possession of and utilize such materials, tools, equipment, supplies and other property belonging to the Contractor and/or assume assignment of any and all subcontracts for Subcontractors and/or Suppliers that may be on the worksite and be necessary to complete the Work. For any portion of such Work that OC San elects to complete by furnishing its own employees, materials, tools, and equipment, OC San shall be compensated in accordance with the schedule of compensation for force account Work as stated in the General Conditions section entitled Task Order Price Adjustments and Payments.
If the Surety assumes the Contractor’s terminated Work, it shall take the Contractor’s place in all respects for that part and shall be paid by OC San for all Work performed by
it in accordance with the terms of the Contract Documents and the Task Order. If the Surety assumes the entire Task Order, all money due the Contractor at the time of its default shall be payable to the Surety as the Work progresses, subject to the terms of the
Contract Documents and the Task Order. Contractor hereby consents to assigning to OC San and/or OC San’s replacement contractor all subcontracts and other agreements of any and all Subcontractors and/or Suppliers that may be on the worksite and/or may be necessary to complete the Work in the event of Termination for Default or Termination for Convenience, as set forth below. Contractor agrees to obtain, by way of a subcontract provision, the consent of each and every Subcontractor and/or Supplier for such assignment prior to the commencement of each such Subcontractor’s and/or Supplier’s Work on the Task Order. In the event of such termination, the Contractor will be paid the actual amount due based on unit prices or lump sums in any awarded Task Order and the quantity of Work
completed at the time of termination, less damages caused to OC San by acts of the Contractor causing the termination, including but not limited to, all costs to OC San arising from professional services and attorneys' fees and all costs generated to insure or bond
the Work of substituted Contractors or Subcontractors utilized to complete the Work, such excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the
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Contractor shall pay the difference to OC San promptly upon demand. On failure of the
Contractor to pay, the Surety shall pay on demand by OC San. Any portion of such difference not paid by the Contractor or Surety within thirty (30) days following the mailing of a demand for such costs shall earn interest at the maximum rate authorized by
California law. The Contractor and OC San agree that nothing in this section is intended to be or is a prevailing party clause as it pertains to attorney’s fees. The foregoing provisions are in addition to and not in limitation of any other rights or remedies under law or in equity available to OC San.
If it is later determined by OC San that the Contractor had an excusable reason for not performing, such as a fire, flood, or other event which was not the fault of or was beyond the control of the Contractor, OC San, after setting up a new performance schedule, may allow the Contractor to continue Work, or treat the termination as a termination for convenience, and the rights and obligations of the Parties shall be the same as if the termination had been issued for the convenience of OC San.
All OC San’s property in the possession or control of Contractor shall be returned by Contractor to OC San on demand or at the termination of this Contract, whichever occurs
first. 29. Attorney’s Fees. If any action at law or in equity or if any proceeding in the form of an
Alternative Dispute Resolution (ADR) is necessary to enforce or interpret the terms of this Contract, each Party shall bear their own attorney’s fees, costs, and other dispute resolution costs. 30. Waiver. The waiver by either party of any breach or violation of, or default under, any provision of this Contract shall not be deemed a continuing waiver by such party of any other provision or of any subsequent breach or violation of this Contract or default thereunder. Any breach by Contractor to which OC San does not object shall not operate as a waiver of OC San’s rights to seek remedies available to it for any subsequent breach. 31. Severability. If any section, subsection, or provision of this Contract; or any agreement or
instrument contemplated hereby; or the application of such section, subsection, or provision is held invalid, the remainder of this Contract 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. 32. Survival. The provisions of this Contract dealing with payment, warranty, indemnity, and forum for enforcement shall survive expiration or early termination of this Contract. 33. Governing Law. This Contract shall be governed by and interpreted under the laws of the State of California and the Parties submit to jurisdiction in the County of Orange in the event any action is brought in connection with this Contract or the performance thereof. 34. Task Orders. OC San does not guarantee that Contractor will receive any individual Task Order, nor that the Contractor will receive an equal number of Task Orders as compared to any other qualified Contractors.
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34.1 Each Task Order shall not exceed Five Hundred Thousand Dollars ($500,000).
34.2 OC San will order the Services through a Request for Task Order Bid. Each Request
for Task Order Bid will contain a detailed Scope of Services and may require attendance at a job walk (including Subcontractors, as needed) prior to the submission of a Task Order Bid. 34.3 Task Order will be awarded on the basis of the lowest responsive Bid. 34.4 The Request for Task Order Bid will identify the project description, location of the Work, and other general and special requirements.
34.5 All Task Order Bids will be lump sum. 34.6 Contractors will be required to list Subcontractors in accordance with California Public Contract Code section, 4100 et seq.
34.7 Payment terms and method will be specified in each Request for Task Order Bid. 34.8 Payment & Performance Bond requirements, if applicable, will be specified in each
Request for Task Order Bid. Notice to Proceed on a Task Order shall not be issued until the bonds are accepted by OC San. 34.9 OC San does not guarantee that any qualified Contractor will be awarded any individual Task Order. 34.10 The Contractor shall submit its Task Order Bid within the date and time specified in the Request for Task Order Bid. Task Order Bids and/or revisions to Task Order Bids
submitted after the date and time indicated in the Request for Task Order Bid will not be accepted.
34.11 Changes to the Task Order Scope of Services and other requirements shall be made in accordance with Master Services Contract Exhibit “B” General Conditions. 35. Task Order Bid – Filing of Protests and Protest Procedures. This section sets forth the procedure and remedies concerning submittal and consideration of all protests received by OC San with respect to the Request for Task Order Bid (RFTOB) issued
under this Master Services Contract. All communications to OC San relating to a Protest shall be in writing and submitted by email to Purchasing@ocsan.gov. By submitting a Task Order Bid (TOB), each Contractor hereby agrees and understands that the Contractor must comply
with these protest procedures and exhaust all administrative remedies set forth herein prior to the initiation of any type of related legal action. Upon the express written agreement of the parties, this protest procedure can also be used to resolve issues surrounding OC San’s determination of a Contractor as not responsible. This procedure is not intended to address issues concerning TOB responsiveness. The following terms as used in this Section shall have the following meanings:
• Affected Parties shall mean bidders on a procurement, whose direct economic interest would be affected by a submitted protest.
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• Protest shall mean a written objection by an Interested Party or Affected Party to (i) the requirements or specifications contained in the RFTOB (solicitation protest); or (ii) a proposed award recommendation (award protest).
• Days shall mean calendar days, unless otherwise specified.
• Interested Party shall mean (1) on solicitation, all Contractors or prospective Contractors; (2) on award, the unsuccessful Contractor(s) with a direct economic interest in the outcome of their protest.
• Solicitation Protest Statement shall mean a written objection during the solicitation phase of the procurement, which shall be submitted prior to the Task Order Bid due date as
specified herein.
• Award Protest Statement shall mean a written objection to the award recommendation prior to final action to award the Task Order Bid, which shall be submitted after receipt of Task Order Bids, but before award of a Task Order Bid, as specified herein.
• File or Submit shall refer to the date of receipt by OC San. Specific procedures and requirements are as follows:
A. Solicitation Phase Protest The purpose of this RFTOB is to obtain competitive TOBs from qualified Contractors. Any
Interested Party who has reason to believe that a free and open competition has not taken place or that a particular specification or requirement is impractical, unduly restrictive, or ambiguous may advise OC San of its concerns by submitting a detailed Solicitation Protest Statement in accordance with the requirements set forth below in this Section A. 1. Contents and Requirements
A Solicitation Protest Statement must be submitted to OC San's Buyer identified in the RFTOB by email at Purchasing@ocsan.gov by 4:00 p.m. (Pacific Time zone) no less than three (3) days prior to the TOB due date, and must contain all of the following to be considered: a. The name, address, and telephone number of the protestor; b. The title, TOB description, and the specification number/project number or RFTOB being protested; c. A detailed statement setting forth the grounds for protest, which shall include, in sufficient detail to establish the merits of the protest, all the factual and legal
documentation in support of the protest; and d. The desired resolution to the protest.
If the submitted Solicitation Protest Statement does not comply with the requirements set forth herein, then it will not be considered for evaluation and will be returned to the protestor. The Solicitation Protest Statement shall not be amended after filing, and OC
San will not consider any unsolicited information provided after filing. Any argument not raised in the Solicitation Protest Statement shall be deemed waived, including as a part of the award protest. Failure to file the Solicitation Protest Statement within the
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time period specified herein shall constitute a waiver of the right to protest the
specifications or requirements of the RFTOB. Solicitation Protest Statements are public documents. OC San will provide copies of
the Solicitation Protest Statements upon written request. 2. Evaluation and Determination No hearing will be held on the protest. OC San’s Contracts, Purchasing and Materials Management Division Manager (Purchasing Manager), or designee, will review all material submitted, conduct an investigation of the facts, and may, but need not, request other Contractors to submit statements or arguments regarding the protest.
OC San’s Purchasing Manager, or designee, may in his/her sole discretion, discuss the protest with the protestor. OC San’s Purchasing Manager, or designee, shall issue a final written decision regarding any solicitation protest to each Contractors prior to TOB submittal due date. The written decision will cite any actions that will or will not be taken in response to the
Solicitation Protest Statement. The decision of the Purchasing Manager concerning the Solicitation Protest Statement shall be final, and there shall be no further administrative recourse.
B. Award Protest
1. Award Recommendation Following opening and evaluation of the TOBs, OC San will issue an award Recommendation to each Contractors who submitted TOB through any one of the following methods: a. Delivery via overnight carrier; or b. Posting the Award Recommendation on OC San’s online bidding system as identified within the RFTOB.
On the date OC San issues an award recommendation, OC San shall make copies of all submitted TOBs available upon request. Requests shall be made to
Purchasing@ocsan.gov and shall contain the following in the subject line of the e-mail: “[Identify: Project/TOB name and Specification No.] – Request for Copies.”
2. Contents and Requirements Any Interested Party, who has reason to believe that a free and open competition has
not taken place in the TOB submittal, evaluation of the TOBs, and award recommendation, is permitted to protest OC San’s award recommendation by submitting an Award Protest Statement to OC San identified in the RFTOB, via electronic mail (e-mail) at Purchasing@ocsan.gov no later than 4:00 p.m. (Pacific Time zone) on the third (3rd ) day after OC San issues the Award Recommendation or some similar announcement. OC San will not accept an Award Protest Statement, or similar document, prior to the date OC San issues its award recommendation to the Contractors. Award Protest Statements, or similar document, received prior to the
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issuance of OC San’s award recommendation will be considered premature and will be
immediately returned to the party filing the Protest without consideration. The Award Protest Statement must be submitted timely and contain all of the following
to be considered: a. The name, address and telephone number of the protestor; b. The title and number of the specification being protested; c. The OC San action or recommendation that is being protested; d. The name(s) of all Affected Parties; e. A detailed statement setting forth the grounds, legal authority and facts in support of the protest, including all documents and evidence;
f. Each and every ground on which the protestor bases the protest by specific references to parts of the RFTOB, which shall be attached as exhibits; g. Each and every reason that all other Affected Parties who may be in line for the purchase or contract award should not be awarded the purchase or contract; h. A clear statement of the relief requested and the statutory or case law basis for such relief; and
i. Signed and sworn by a principal of the protestor. If the submitted Award Protest Statement does not comply with the requirements set
forth herein, then it will not be considered for evaluation, and will be returned to the protestor. The Award Protest Statement shall not be amended after filing, and OC San will not consider any unsolicited information provided after filing. Any argument not raised in the Award Protest Statement shall be deemed waived. Award Protest Statements are public documents. OC San will notify the Affected Parties when a protest has been submitted and will provide copies of the Protest Statements to the Interested Parties as soon as is reasonably practical.
3. Evaluation and Determination
The Affected Parties may file responsive statements in support of or in opposition to the protest no later than 4:00 p.m. on the third business day after the receipt of the Award Protest Statement from OC San. The Purchasing Manager, or designee, shall
review the facts and all submittals relative to the Award Protest Statement and shall issue a written decision setting forth the basis for such decision. The written decision will be issued to the protestor and to all Affected Parties. Unless otherwise required by law, no evidentiary hearing or oral argument shall be provided, except in the sole discretion of the Purchasing Manager, or designee. In the event a hearing is conducted, the Purchasing Manager, or designee, shall issue written notice to the protestor and Affected Parties identifying the date and time for the hearing, along with rules concerning the hearing.
4. Appeal Process In the event of an adverse decision by the Purchasing Manager, or designee, the
protestor may submit a written appeal to the Director of Finance and the Director of the Department requesting the Procurement, and immediately send copies to all Affected
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Parties. The appeal must be submitted via email to Purchasing@ocsan.gov no later
than 4:00 p.m. (Pacific Time zone) within three (3) days after the date the Purchasing Manager, or designee, rendered a decision. The protestor shall only submit: (1) information and documentation previously submitted to the Purchasing Manager, or
designee; (2) a copy of the final decision of the Purchasing Manager, or designee; and (3) a brief statement setting forth all factual and legal bases for the appeal. The Director of Finance, together with the Director of the Department requesting the Procurement shall evaluate each Award Protest Statement and determine whether to uphold or reject the Purchasing Manager’s determination. For Task Orders to be awarded by the General Manager, the decision of the Director of Finance and the Director of the Department requesting the Procurement shall be final.
C. Delay in Award Execution of any proposed contract shall be delayed pending the resolution of the protest unless one or more of the following conditions is present: 1. The items or services being procured are urgently required;
2. Delivery or performance will be unduly delayed by failure to make award promptly; or 3. Failure to make prompt award will otherwise cause undue harm to OC San.
D. No Limitation on Remedies Nothing contained herein shall be construed to act as a limitation on OC San's choice of
remedies or confer any right upon any Interested Party or Affected Party to a remedy. E. Basis for Choice of Remedy In determining the appropriate remedy, OC San shall consider all the circumstances surrounding the RFTOB and/or award, including, but not limited to: 1. Seriousness of any deficiency found to exist in the contracting process; 2. The effect of the action on the competitive process; 3. Any urgency surrounding the contract requirement; and 4. The effect that implementing the remedy will have on OC San.
F. Remedies
If OC San determines that the award or proposed award was not made in accordance with applicable statutes, regulations, policies and/or procedure, OC San, in its sole discretion, may grant any of the following remedies or any other remedy it deems appropriate:
1. Prior to award, OC San may issue a new solicitation, make a new selection/award recommendation, or award a contract consistent with applicable statutes, regulations, policies and procedures. 2. In its sole discretion, take no further action; or 3. Take any other action that is permitted by law to promote compliance.
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G. Legal Action
Any legal action to set aside the final determination of OC San must be filed no later than the 90th day following the date of the final determination consistent with Code of Civil
Procedure section 1094.6. In the event a protestor files a legal action related to the protest, if OC San prevails, OC San reserves the right to seek reimbursement of its costs, including attorneys’ fees, to the fullest extent permitted by law. 36. Notices. 36.1 All notices under this Contract and any Task Orders must be in writing. Written notice shall be delivered by personal service, by electronic telecommunication, or 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. Rejection or other refusal to accept or the inability to deliver because of changed address for which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand, or request sent. All notices shall be effective when first received at the following addresses:
OC San: Jackie Lagade Purchasing Supervisor
Orange County Sanitation District 18480 Bandilier Circle Fountain Valley, CA 92708 jlagade@ocsan.gov Contractor: Alejandro J. Montoya CEO/President Zia Degrees, Inc. 879 W. 190th St., Suite 400 Gardena, CA 90248 ziadegreeshvac@gmail.com 36.2 Each party shall provide the other party written notice of any change in address as soon
as practicable. 37. Read and Understood. By signing this Contract, Contractor represents that it has read and
understood the terms and conditions of the Contract. 38. Authority to Execute. The persons executing this Contract, inclusive of Task Orders on
behalf of the Parties warrant that they are duly authorized to execute this Contract and any Task Orders, and that by executing this Contract, the Parties are formally bound. 39. Entire Agreement. This Contract constitutes the entire agreement of the Parties and supersedes all prior written or oral communications and all contemporaneous oral agreements, understandings, and negotiations between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, intending to be legally bound, the Parties hereto have caused this Contract to be signed by their duly authorized representatives.
ORANGE COUNTY SANITATION DISTRICT Dated: _________________ By: Ryan P. Gallagher Chair, Board of Directors
Dated: _________________ By: Kelly A. Lore
Clerk of the Board
Dated: _________________ By:
Kevin Work Purchasing & Contracts Manager ZIA DEGREES, INC. Dated: _________________ By:
Print Name and Title of Officer
LL
EXHIBIT A
SCOPE OF SERVICES
For
Maintenance & Repair Services
EXHIBIT A Page 1 of 3 Specification No. S-2024-1447BD
EXHIBIT A SCOPE OF SERVICES Maintenance and Repair Services SPECIFICATION NO. S-2024-1447BD
The Contractor shall be prepared and required to provide ethical, professional, and quality work in the best interests of the public and OC San (personnel and property) in conformance with current regulatory standards. The Contractor will be expected to perform Work as described below. All Work shall be performed in accordance with OC San design guidelines, standard specifications, engineering (project) drawings and specifications.
I.GENERAL MAINTENANCE SERVICES – Requires California Contractors License “A”
A.Mechanical Systems: Installation, demolition, replacement, testing, and repair work
associated with mechanical systems. This Work generally includes replacing, repairing,removing, testing, and installing, among other work items, mechanical equipment, andassociated systems. This Work generally includes, but is not limited to, Work associated
with pumping systems, air handling systems, fans, , clarifier components, digestercomponents, blowers, engines, valves, boilers, pulley systems, shop-cranes, scissor-lifts,line-stops, lab equipment, and other mechanical-type systems. Work includes replacing,repairing, or modifying associated piping and appurtenant equipment required to installfunctioning systems.
B.Piping Systems: Installation, demolition, replacement, testing, and repair of buried andabove-ground piping systems. This Work generally includes replacing, repairing,removing, testing, and installing, underground and above ground piping systems of alltypes. This Work generally includes, but is not limited to, installing piping, trenching andbackfilling of buried pipe systems, valves, corrosion, coating, lining, bypass piping, bypass
pumping, sewage drainage, paving, related appurtenances and other items of Workneeded to construct, repair, or replace a fully functioning piping system. Typical OC Sanpiping systems include, but are not limited to, sewer piping (lateral, trunk, force-main, etc.),
water piping, storm-water piping, gas piping, air conveyance piping, chemical piping, etc.
C.Structural Repairs and Replacements: Installation, demolition, replacement, and repair
of OC San structural systems. This Work generally includes replacing, repairing, removing,and installing, among other work items, concrete, wood, steel systems, beam systems,roofing systems, supports and associated systems. This Work consists of, but is notlimited to, vertical and horizontal concrete flatwork, structural steel, timber and woodstructures, brickwork, masonry, platforms, scaffolding, decks, and associated systems.Work also consists of structural analysis of said systems, general reinforcement, seismicreinforcement, and other items not listed.
D.Yard/Site Work Repairs and Replacements: Installation, demolition, replacement, andrepair of site-systems. This Work generally includes replacing, repairing, removing, andinstalling, among other Work items, site soil, pavement, and associated systems. This
Work generally includes, but is not limited to, asphaltic concrete, walkways, railings, basecourse, sub-base, pavement patching, concrete curb and gutter, irrigation systems,sidewalk, driveway, garden walls, sprinkler systems, retaining walls, drainage systems,parking areas, street lighting and other typical yard or site items and systems.
E.Architectural and Building Systems: Installation, demolition, replacement, and repair of
architectural and building systems. This type of Work generally includes, but is not limitedto, walls, stair-ways, ladders, leisure areas, office areas, plumbing systems, bathroomrepairs, ceiling tiles, railings, hand-rails, roofing systems and other typical office or buildingitems and systems.
EXHIBIT A Page 2 of 3 Specification No. S-2024-1447BD
F. Contaminated Soil Remediation Services: Work associated with the remediation of contaminated soil or groundwater. This Work generally includes performing preliminary risk analysis, creation of a remediation plan, and the implementation of the plan. G. Remediation Services: Work associated with the removal and disposal of hazardous materials, that include but is not limited to lead-based paint and asbestos containing materials (such as floor tiles or roofing materials). This Work includes compliance with all local, state, and federal regulations. H. Chemical Systems: Installation, demolition, replacement, and repair of chemical handling systems. This Work generally includes addition/injection systems, removal systems,
analyzer systems and storage systems. This Work generally includes but is not limited to chemical analyzer systems, chemical control systems, chemical storage tanks, chemical delivery piping and equipment, system maintenance, redundancy analysis/implementation,
chemical dosing, field testing and other items typically found or associated with chemical systems. I. Landscaping: Installation, demolition, and replacement of landscaping. This Work generally includes, but is not limited to, replacing, repairing, removing, and installing hard and soft items associated with landscapes, such as, plants, irrigation, concrete, paving, grass, rocks, gravel, soil and other associated items.
J. Signs and Related Systems: Installation, demolition, replacement, and repair of signage and related systems. This Work generally includes, but is not limited to, signage associated with traffic regulation, confined-space entry, global harmonization, warning and precautionary systems, construction signage and other associated items. K. Miscellaneous Services: This Work generally includes, but is not limited to
sandblasting/pressure washing, surface preparation, protective coating system application, debris removal, trash removal, graffiti removal, potholing, shoring/trench protection systems, fiberglass, traffic control, traffic control plans, backhoe/excavator services,
bypass piping/pumping and other services not listed. Miscellaneous services also include related Work activities necessary to properly complete required tasks. These Work activities generally include, but are not limited to, labor, equipment transportation, site-staging, supervision, management, material acquisition/transport, dewatering, and provision of tools.
EXHIBIT A Page 3 of 3 Specification No. S-2024-1447BD
II. ELECTRICAL SERVICES – Requires California Contractor’s License “C-10” A. Electrical Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of electrical power distribution systems, control systems, instrumentation systems, measurement acquisition systems, other systems, circuits, fiberoptics, communication systems, analyzer systems, programming. Include conduit, cable trays, conductors, cables, motors, generators, transformers, power monitors, lighting, transducers, uninterrupted power supply, switchgear, circuit panel boards, digital programable relays, microprocessor protective relays, breakers, electro-mechanical & solid-state relays, transient voltage surge suppressors, variable frequency drives, transducers, monitors, probes, programming, and
associated systems.
III. HEATING, VENTILATION AND AIR CONDITIONING (HVAC) SERVICES - Requires California Contractors License “C-20” A. HVAC Systems: This Work generally includes replacing, repairing, removing, testing, installing, refurbish, calibrating, balancing and demolition of Heating, ventilation, and air conditioning systems. This includes split -air, packaged, ductless, hybrid heat, Chillers,
dryers, heat pumps, furnaces, thermostats, building controls, condensers, evaporators heat exchangers, refrigerant, recovery, and air handling components.
OPERATIONS COMMITTEE
Agenda Report
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
File #:2024-3805 Agenda Date:10/2/2024 Agenda Item No:4.
FROM:Robert Thompson, General Manager
Originator: Mike Dorman, Director of Engineering
SUBJECT:
LICENSE AGREEMENT FOR CONSTRUCTION STAGING AREA AT PLANT NO. 2
GENERAL MANAGER'S RECOMMENDATION
RECOMMENDATION: Recommend to the Board of Directors to:
Approve a Temporary,Non-Exclusive and Revocable License Agreement with the City of Newport
Beach for a construction staging area,at a cost of $10 and other consideration;with a term
commencing on June 1,2024,and terminating upon (i)the completion of the City Projects,or (ii)
December 31, 2028; in a form approved by General Counsel.
BACKGROUND
Orange County Sanitation District (OC San)Plant No.2 has open space near the Banning Avenue
gate that is not planned to be used in the near future.This license agreement will allow the City of
Newport Beach (City)and its contractors to use this approximately 18,500 square-foot space for
construction staging until the end of 2028.
RELEVANT STANDARDS
·Maintain collaborative and cooperative relationships with regulators,stakeholders,and
neighboring communities
PROBLEM
The City needs staging areas for their contractors and are limited on space within their city.
PROPOSED SOLUTION
Approve the license agreement.
TIMING CONCERNS
N/A
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File #:2024-3805 Agenda Date:10/2/2024 Agenda Item No:4.
RAMIFICATIONS OF NOT TAKING ACTION
OC San recently entered into a license agreement with the City to use a portion of Lower Castaways
Park as a construction staging area for an OC San Project.If this license agreement is not approved,
it will hinder the cooperation and good will between the City and OC San.
PRIOR COMMITTEE/BOARD ACTIONS
N/A
FINANCIAL CONSIDERATIONS
N/A
ATTACHMENT
The following attachment(s)may be viewed on-line at the OC San website (www.ocsan.gov)with the complete agenda
package:
·License Agreement
AN:lb
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LEGAL02/44050596v6
TEMPORARY, NON-EXCLUSIVE AND REVOCABLE LICENSE AGREEMENT BETWEEN THE ORANGE COUNTY SANITATION DISTRICT AND THE CITY OF NEWPORT BEACH
FOR USE OF ORANGE COUNTY SANITATION DISTRICT PROPERTY
THIS TEMPORARY, NON-EXCLUSIVE AND REVOCABLE LICENSE AGREEMENT FOR USE OF ORANGE COUNTY SANITATION DISTRICT PROPERTY (“Agreement”) is made and entered into as of this 1st day of June 2024 (“Effective Date”),
by and between the ORANGE COUNTY SANITATION DISTRICT, a California public
body (“OC San” and “Licensor”), and the CITY OF NEWPORT BEACH, a California municipal corporation and charter City (“City” and “Licensee”). City and OC San are individually referred to as “Party” and collectively as “Parties” herein.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. OC San is the owner of real property located at 22212 Brookhurst St, Huntington Beach, CA 92646, commonly known as Plant No. 2 (“OC San Property”). C. The City desires to use, on a temporary basis, and OC San is willing to grant a
temporary License (as defined in Section 1.1 below) for the City to use, under the
terms, covenants and conditions set forth in this Agreement, an approximately eighteen thousand five hundred (18,500) square foot portion of the OC San Property located (unless relocated as described hereinbelow) within the northerly area of the OC Property as approximately depicted on Exhibit “A” attached hereto and
incorporated herein by reference (“License Area”) as a construction staging area to support projects performed by, or on behalf of, the City (collectively, the “City Projects”). D. OC San and Licensee desire to enter into this Agreement for Licensee to utilize the
License Area as a staging area related to the City Projects, subject to the terms, covenants and conditions set forth in this Agreement. NOW, THEREFORE, for the amount of $10.00 and other consideration, the
sufficiency of which is hereby acknowledged by the parties hereto, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE
1.1 OC San hereby grants a temporary, non-exclusive and revocable license
(“License”) to Licensee for the term of this Agreement as set forth in Section 4 below for use as a temporary construction staging site exclusively for City Projects within the License Area.
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1.2 In the event OC San shall need or desire to change or modify the location of the License Area within the OC San Property, Licensee shall, within thirty (30) calendar days of OC San’s delivery to Licensee of prior written notice of such change or
modification (the “Relocation Notice”), relocate its equipment and materials to a new or
modified location within the OC San Property, which relocation shall occur as directed by OC San to the area generally depicted on an aerial exhibit included with the Relocation Notice and such area will thereafter be considered as the License Area, which thereafter will be subject to all of the terms, covenants and conditions provided under this
Agreement. Notwithstanding any new, relocated or modified License Area, the initial or
former License Area occupied by Licensee shall continue to remain subject to Sections 16 and 20 as set forth therein, which provisions will survive the expiration or earlier termination of this Agreement. Licensee acknowledges and agrees that (i) OC San may relocate Licensee, in OC San's sole and absolute discretion, and (ii) the cost of such
relocation and reinstallation of the fencing, screening and Gate required under Section
7.2.5 shall be borne solely by Licensee with no cost or impact to OC San or Licensee’s obligations under this Agreement whatsoever.
1.3 The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the
consideration for this License, to keep and perform each and every term, covenant and
condition of this Agreement.
2. PURPOSE OF THIS AGREEMENT
The purpose of this Agreement is to provide Licensee with temporary, non-exclusive use of the License Area as a temporary staging area and storage site for
equipment, materials and soils, and for parking, to facilitate Licensee’s work necessary
for the City Projects. Licensee shall use the License Area only for the activities described herein and shall not use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of OC San, which consent may be withheld in OC San’s sole discretion.
3. PERMITS, LICENSES AND BEST PRACTICES
3.1 Licensee, at its sole expense, shall obtain and maintain during the Term (as defined in Section 4 below) of this Agreement, all appropriate permits, licenses and certificates that may be required by any governmental agency, including OC San, in order to use the License Area as a temporary construction staging and storage site for
equipment and materials, and for parking.
3.2 Licensee shall have in effect a Stormwater Pollution Control Plan (“SWPCP”) and Best Management Practices plan (“BMPs”) accepted by Licensee and its employees (“Licensee’s In-House Representatives”) and Licensee’s contractors and subcontractors (“Licensee’s Contracted Representatives”) (and together, Licensee’s
In-House Representatives and Licensee’s Contracted Representatives are collectively referred to herein as “Licensee’s Representatives”) to ensure all activities on, within or about the License Area are in compliance with industry standards best practices,
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including, but not limited to description of activities that could cause pollution, control measures for preventing spills and minimizing hazards, a spill response plan, procedures for conducting inspections and monitoring, and provisions for sufficient training of
Licensee’s representatives.
3.3 Licensee shall establish, maintain and uphold business practices to the highest degree as generally recognized in Licensee’s industry, and exercise the utmost caution for the protection and safety of Licensee and the general public at all times during the term of this Agreement.
4. TERM
This Agreement shall commence upon the Effective Date and terminate upon (i) the completion of the City Projects, or (ii) December 31, 2028, whichever occurs first (“Term”), unless OC San terminates the License in accordance with Section 15.2 or Section 15.3 below prior to the expiration of such Term. Both Parties understand and
agree that this Agreement is for a temporary period of time and does not, and will not,
result in permanent use of, or access to, the License Area by Licensee.
5. LICENSE FEE
The License is provided by OC San to Licensee at no charge. OC San is not charging Licensee a fee comparable to the open market or appraised value of the License
Area because OC San finds that Licensee’s use of the License Area for the purpose of
completing public City Projects to be a service to the community.
6. UTILITIES
6.1 Licensee acknowledges and agrees that (i) Licensee shall not need or require the usage of any utilities within the License Area, and (ii) OC San will not be
obligated to provide any utilities to or within the License Area or any access to utilities.
7. USE AND CONDITIONS OF THE LICENSE AREA
7.1 General Use and Conditions.
7.1.1 Licensee understands the safety of the public is paramount to the uses and conditions set forth herein under this Section 7 for the License Area.
Licensee shall maintain the License Area free from waste, debris, hazards or risks to public health, safety or welfare at all times.
7.1.2 Licensee shall not use or permit the use of the License Area for any unlawful purpose.
7.1.3 Licensee shall not commit or permit the commission of any noise or
nuisance on the License Area and shall comply with any and all noise and nuisance requirements as defined by any applicable federal, state and local laws and regulations.
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7.1.4 Use of any area on, within or about the OC San Property and outside the License Area (other than for purposes of accessing the License Area as permitted by OC San) is strictly prohibited without prior written approval from OC
San. Weekday access (5 AM to 3 PM, subject to change by OC San) shall be
through the gate that is just north of Banning Avenue, as depicted on Exhibit “A” (the “Banning Gate”), which will have a security guard employed or contracted by OC San during such hours. Access to the License Area by Licensee or Licensee’s Representatives outside of these hours may be obtained through OC San’s
representative located at the Plant No. 2 main gate upon Licensee’s delivery to
OC San of a 48 hour advance written notice in form provided on Exhibit “C” attached hereto and made a part hereof, (“Main Gate Access Request”) which shall be sent electronically as set forth in the Main Gate Access Request and OC San’s written consent to such access request, which consent may be sent in a
response to the requesting email and shall be timely granted or denied in OC San’s
sole but reasonable judgment.
7.1.5 Except as provided under this Agreement, Licensee shall not make or permit to be made any alterations, additions or improvements to the License Area, or install lighting or equipment, or install any signs, lettering or advertising
media of any type or any other visual displays, on or about the License Area without the prior written consent of OC San. Notwithstanding the foregoing, Licensee shall place all required construction notices and warning signs on or about the License Area in the manner required by OC San or Federal, State or local law.
7.1.6 Licensee shall protect the integrity of the License Area and any part of the OC San Property used for the purposes of accessing the License Area (“Access Areas”). Licensee shall prevent any oil, cement or other material spills at the driveway entering the Banning Gate or any other access point onto the OC San Property, the Access Areas and any other area on or about the License Area
and Access Areas. Licensee shall return the License Area and Access Areas used by Licensee or Licensee’s Representatives to OC San in the condition that existed as of the Effective Date of this Agreement (or otherwise to a condition satisfactory to and approved in writing by OC San), ordinary wear and tear excepted. Licensee shall, at its sole cost and expense, document (including photos and/or video) the
condition of the License Area and Access Areas existing as of the Effective Date (or date of relocation, if applicable) and submit such documentation to OC San within five (5) business days of (i) the Effective Date, or (ii) the date of relocation (as set forth under Section 14 below), as applicable.
7.1.7 Licensee shall exercise all necessary precautions for opening,
closing, and securing the License Area and its equipment and materials stored in the License Area at all times. Licensee expressly assumes all responsibility for the protection and security of the License Area, including personal property and equipment of Licensee.
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7.1.8 Licensee shall install legible signs on the License Area that includes Licensee’s contact information, including a 24-hour emergency phone number.
7.2 Special Use and Conditions.
7.2.1 Licensee shall maintain the smallest footprint on the OC San Property as absolutely required by the scope of the City Projects at any given time during the phases of construction, and Licensee shall use it best efforts to reduce its impact to the OC San Property by using the fewest truck and vehicle trips, and by storing on the License Area the least amount of equipment and materials as
necessary for the immediate needs of the City Projects. Licensee shall use its best efforts to complete the City Projects on time or ahead of schedule and discontinue its use of the License Area and Access Areas within the OC San Property as soon as possible.
7.2.2 Licensee may use the License Area for the temporary storage of
construction vehicles, equipment and materials. Any temporary stockpiling of materials is prohibited unless such materials are stored on raised mobile platforms, pallets or other protective barriers to prevent spills or spread of materials.
7.2.3 Licensee’s Representatives (defined in Section 3) shall have the right to park personal vehicles within the License Area provided that Licensee
delivers the name(s) of any such representative to OC San, prior to such representative parking his or her vehicle within the License Area, and Licensee shall ensure that the Gate (as defined in Section 7.2.5 below) to the License Area for access to such vehicles is closed and locked. Licensee shall not park any vehicles outside the License Area.
7.2.4 Licensee is strictly prohibited from bringing any soil or dredged materials from the City Projects on to the License Area or any other portion of the OC San Property. Such soil or dredged material shall not be stored, nor brought on site even temporarily, nor in transport to a secondary site.
7.2.5 Licensee, at Licensee’s sole cost and expense, shall cause the
License Area to be fenced and screened on all sides commencing no later than thirty (30) calendar days after the Effective Date of this Agreement (or thirty (30) calendar days after the effective date of any relocation as provided under Section 14 below) and continuing until the expiration or earlier termination of this Agreement. Licensee shall not bring any equipment or personnel or use the
License Area until and unless the License Area is fully fenced and screened. The height of fence shall be at least six (6) feet, and fence material shall be chain link metal fence overlaid on the exterior with an opaque vinyl screen, or other equivalent fencing and screening material as approved in writing by OC San. The fencing shall include the installation of a locking gate (the “Gate”) which swings to
the interior of the License Area to provide access to the License Area. Licensee shall place warning signs on or about the License Area in any manner required by federal, state or local law.
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7.3 Other Users of Property. The License Area is a portion of the OC San Property specifically designated for use by Licensee for the operations permitted herein. Certain other portions of the OC San Property are also shared with other tenants or
licensees of OC San, and consideration shall be given by Licensee to these other tenants
and licensees so as not to impede the operation of their respectively designated uses of the OC San Property.
8. OC SAN INSPECTION
8.1 OC San shall be entitled, at any time, to inspect the License Area for
compliance with the terms of this Agreement, and with all applicable federal, state and
local laws and regulations.
8.2 OC San and its authorized OC San representative(s) may, without prior notice to Licensee, enter upon and inspect the License Area for any lawful purpose, provided that OC San shall use commercially reasonable efforts to not interfere with
Licensee’s operation and/or use of the License Area in performing any such entry,
inspection, and/or shared use of the License Area. In case of emergency, OC San or its authorized OC San representative(s) may enter the License Area by whatever force reasonably necessary if Licensee is not present to open and permit entry. Any entry to the License Area by OC San under this License shall not be construed as a forcible or
unlawful entry into, or a detainer of, the License Area, or an eviction of Licensee from the
License Area or any portion thereof.
9. EMERGENCY
9.1 Licensee understands the License Area is located on public property and emergency situations may develop from time-to-time that require access to the Property
to be immediately stopped and thereby interfere or temporarily terminate Licensee’s use
of the License Area. Licensee agrees that, if such a situation occurs, OC San shall have the right to immediately restrict access to the License Area and any equipment or materials located on the License Area for the duration of the emergency. Licensee agrees not to hold OC San responsible or liable for and shall protect, defend, indemnify and hold
OC San harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the License Area.
9.2 Unless otherwise specifically provided in a notice of termination of this Agreement, OC San’s exercise of the right to restrict access to the License Area is not intended to constitute a termination of this Agreement by either Party and such event is
a risk accepted by Licensee. Licensee and OC San shall meet after OC San determines that an emergency has ended to establish the time and manner in which access shall be restored. OC San shall have the right to reasonably determine what constitutes an “emergency situation” pursuant to this Section.
10. MAINTENANCE
At its sole cost and expense, Licensee shall take good care of and keep the License Area neat and clean at all times. Should Licensee fail to commence required
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maintenance or repairs, or cleaning of the License Area (or Access Areas utilized by Licensee or Licensee’s Representatives) to a condition satisfactory to OC San, within twenty-four (24) hours after receipt of written notice to do so, OC San may perform such
work or have such work performed by others and Licensee shall immediately reimburse
OC San for all direct and indirect costs associated with such work upon receipt of an invoice for such costs.
11. NO INTEREST IN THE OC SAN PROPERTY
Nothing herein shall be deemed to create a lease, or easement of any property
right, or to grant any possessory or other interest in the License Area, the OC San
Property, or any public right-of-way, other than a license to use and access the License Area, revocable and for a temporary term as set forth in this Agreement.
12. RESERVATION OF RIGHTS
Licensee understands, acknowledges and agrees that any and all authorizations
granted to Licensee under this Agreement are non-exclusive and shall remain subject to
all prior and continuing regulatory and propriety rights and powers of OC San to regulate, govern and use the License Area and the OC San Property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect the License Area and the OC San Property.
13. OC SAN RETENTION RIGHTS
Licensee’s right to use the License Area during the term of this Agreement shall be subordinate and junior to the rights of OC San to use and occupy the License Area and the OC San Property for any purpose.
14. RELOCATION
OC San reserves the right to change the boundaries of the License Area or its location within the OC San Property, in which case Licensee shall (i) relocate its equipment and materials to the new boundaries or location of the License Area, and (ii) re-install the fencing, screening and Gate required under Section 7.2.5 at Licensee’s sole
cost and expense and without making any claim against OC San for reimbursement or damage therefor.
Except in the event of an emergency or other situation requiring immediate relocation from the License Area, OC San shall provide Licensee with not less than thirty (30) calendar days written notice of relocation specifying the location of the new License
Area and the outside date by which the relocation must take place.
15. TERMINATION
15.1 Except as otherwise provided in this Agreement or in accordance with this Section, OC San shall not terminate this Agreement or the License prior to the end of the Term set forth in this Agreement.
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15.2 OC San may terminate this Agreement, at its discretion with no reason of default, upon providing no less than one hundred eighty (180) calendar days prior written notice to Licensee.
15.3 OC San may terminate this Agreement upon Licensee’s failure to cure or
correct a default of any term or condition of this License within ten (10) business days of Licensee’s receipt of written notice of such default. The written notice shall describe the subject default in reasonable detail.
16. SURRENDER
Upon the expiration or earlier termination of this Agreement, Licensee, at its sole
cost and expense, shall, within fifteen (15) calendar days thereof, remove all of its equipment and stored materials, restore the License Area and Access Areas utilized by Licensee or Licensee’s Representatives to the condition that existed as of the Effective Date of this Agreement or the effective date of any relocation (or otherwise to a condition
satisfactory to and approved in writing by OC San), ordinary wear and tear excepted, and
vacate the License Area. Restoration may include, but is not limited to, removing any and all debris, waste or other material. Should Licensee fail to restore the License Area and/or Access Areas to a condition satisfactory to OC San, OC San may perform such work or have such work performed by others and Licensee shall immediately reimburse OC San
for all direct and indirect costs associated with such work upon receipt of an invoice for
such costs.
17. ADMINISTRATION
This License will be administered by the OC San Finance Department. The Director of Finance or its designee shall be the License Administrator and shall have the
authority to act for OC San under this License. The License Administrator or its
authorized representative shall represent OC San in all matters pertaining to this License.
18. INDEMNIFICATION AND LIABILITY FOR DAMAGES
18.1 Irrespective of any insurance carried by Licensee for the benefit of OC San, and to the fullest extent permitted by law, Licensee shall indemnify, defend, assume all
responsibility for, and hold harmless OC San, its elected or appointed officers, agents, officials, employees, and volunteers (collectively, the “Indemnified Parties”) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney’s fees, disbursements and court costs) of every kind and nature whatsoever (individually, a “Claim” and, collectively, “Claims”), which may arise from or in any manner relate (directly or indirectly) to Licensee’s operations conducted under this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death, which may be caused by any of Licensee’s activities
under this Agreement, whether such activities or performance thereof be (i) by Licensee, or (ii) Licensee’s Representatives or any other Licensee’s permittees or agents and
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whether such damage shall accrue or be discovered before or after termination of this Agreement.
18.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Licensee to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties or by OC San’s failure to comply with the terms, covenants and conditions of this Agreement. Nothing in this indemnity shall be construed as authorizing any award of attorney’s fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by Licensee.
18.3 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area and Access Areas to the extent necessitated by Licensee’s use of the License Area and such Access Areas, for such time as this License
is in effect. Licensee shall use care to protect the License Area when not in use by
Licensee.
18.4 OC San shall indemnify, defend, assume all responsibility for, and hold harmless Licensee, its elected or appointed officers, agents, officials, employees, and volunteers from and against any and all Claims which may arise from or in any manner
relate (directly or indirectly) to the operations or activities conducted in, on, or over the
License Area by OC San or its elected or appointed officers, agents, officials, employees, and volunteers, and for any damages to property or injuries to persons, including accidental death, which may be caused by the operations or activities conducted in, on, or over the License Area by OC San or its elected or appointed officers, agents, officials,
employees, and volunteers, whether such damage shall accrue or be discovered before
or after termination of this Agreement. Notwithstanding the foregoing, nothing herein shall be construed to require OC San to indemnify Licensee, its elected or appointed officers, agents, officials, employees, or volunteers from any Claim arising from the negligence or willful misconduct of Licensee, its elected or appointed officers, agents, officials,
employees, or volunteers, respectively, or by Licensee’s failure to comply with the terms, covenants and conditions of this Agreement.
19. INSURANCE
Licensee is a self-insured governmental agency. Without limiting Licensee’s indemnification of OC San, and prior to commencement of work, Licensee shall require
Licensee’s Contracted Representatives to obtain, provide and maintain at its own expense during the Term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms, covenants and conditions described in the Insurance Requirements attached hereto as Exhibit “B” and incorporated herein by reference.
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20. HAZARDOUS SUBSTANCES
20.1 From the Effective Date of this Agreement throughout the Term, Licensee shall not use, store, manufacture or maintain in, on, under, about or within the License
Area any Hazardous Substances except (i) in such quantities and types found customary
in construction, repair, maintenance and operations of the construction staging yard approved by this Agreement, and (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Licensee shall handle, store and dispose of all Hazardous Substances it brings onto the License Area in accordance with applicable
laws.
20.2 For purposes of this Agreement the term “Hazardous Substance” means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (“CERLCA”);
the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. (“RCRA”); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act,
Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections
25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the Porter-Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time-to-time may be amended, (the above-cited statutes are here collectively referred to as “the Hazardous Substances Laws”) or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating,
relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste
or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.
20.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Licensee set forth in this Agreement, Licensee agrees to indemnify, defend with counsel reasonably acceptable to OC San, protect, and hold
harmless OC San, its elected or appointed officers, agents, officials, employees, volunteers and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which OC San, its elected or appointed officers, agents,
officials, employees, volunteers, or assigns may sustain or incur or which may be imposed
Orange County Sanitation District Page 11 LEGAL02/44050596v6
upon them in connection with the use of the License Area provided under this Agreement by Licensee, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area by Licensee. This Section is intended to
operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section
9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify OC San for any claim pursuant to the Hazardous Substance Laws or the common law.
20.4 OC San agrees to indemnify, defend with counsel reasonably acceptable to
Licensee, protect, and hold harmless Licensee, its elected or appointed officers, agents,
officials, employees, volunteers and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which Licensee, its elected or
appointed officers, agents, officials, employees, volunteers, or assigns may sustain or
incur or which may be imposed upon them arising from the use of the License Area by OC San, its elected or appointed officers, agents, officials, employees, volunteers and assigns.
20.5 OC San agrees that OC San will not, and will not authorize any third party
to use, generate, store, or dispose of any Hazardous Substances on, under, about or
within the License Area in violation of any law or regulation. OC San and Licensee each agree to defend, indemnify and hold harmless the other and the other’s partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or agreement contained in this Section.
This Section shall survive the termination of this Agreement. Upon expiration or earlier
termination of this Agreement, Licensee shall surrender and vacate the License Area and deliver possession thereof to OC San on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area and any Access Areas that are directly attributable to Licensee.
21. ASSIGNMENT
All of the terms, covenants and conditions of this Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Agreement and the rights and obligations of Licensee is personal to Licensee and shall not be assigned, transferred, or hypothecated (collectively referred to
as “transferred”), in whole or in part, without the prior written consent of OC San, which consent may be withheld in OC San’s sole and absolute discretion for any reason or no reason at all. Any assignment of this Agreement or the License granted hereunder, voluntarily or by operation of law, shall automatically terminate this Agreement, unless Licensee has obtained the prior written consent of OC San.
22. CONFLICT OF INTEREST
The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 (“Act”), which (a) requires such persons to disclose any
Orange County Sanitation District Page 12 LEGAL02/44050596v6
financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act,
Licensee shall conform to all requirements of the Act. Failure to conform to the
requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by OC San. Licensee shall indemnify and hold harmless OC San for any and all claims for damages resulting from Licensee’s violation of this Section.
23. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to OC San shall be addressed to OC San
at:
Orange County Sanitation District Attn: Wally Ritchie 18480 Bandilier Circle
Fountain Valley, CA 92708
All notices, demands, requests or approvals from OC San to Licensee shall be addressed to Licensee at:
City of Newport Beach Attn: Assistant City Engineer 100 Civic Center Drive Newport Beach, CA 92660
Notwithstanding the foregoing, all notices under Section 7.1.4 shall be provided electronically as set forth therein.
24. STANDARD PROVISIONS
24.1 Recitals. OC San and Licensee acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
24.2 Compliance with Laws. Licensee, at its sole cost and expense, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all Americans with Disability Act requirements, applicable zoning
ordinances, building codes and environmental laws. Licensee shall not occupy or use the License Area or permit any portion thereof to be occupied or used for any use or
Orange County Sanitation District Page 13 LEGAL02/44050596v6
purpose that is unlawful, in part or in whole, or deemed by OC San to be disreputable in any manner or extra hazardous on account of fire.
24.3 Not Agent of OC San. Neither anything in this Agreement nor any acts of
Licensee shall authorize Licensee to act as agent, contractor, joint venture or employee of OC San for any purpose.
24.4 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or
regulation, or of any subsequent breach or violation of the same or other term, covenant,
condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable law,
ordinance or regulation.
24.5 Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein.
24.6 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement, or any other attachments attached hereto, the terms of this Agreement shall govern.
24.7 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or
against either Party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
24.8 Amendments. This Agreement may be modified or amended only by a written document executed by both Licensee and OC San and approved as to form by the OC San Attorney.
24.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
24.10 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange.
24.11 Equal Opportunity Employment. Licensee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
Orange County Sanitation District Page 14 LEGAL02/44050596v6
24.12 Taxes. Licensee shall pay any and all personal interest property taxes, real property taxes, possessory interest taxes, fees and assessments, or similar charges which may at any time be imposed or levied by any public entity and attributable to the
Agreement authorized herein. OC San hereby gives notice to Licensee, pursuant to
Section 107.6 of the California Revenue and Taxation Code that this Agreement may create a possessory interest in and to the property of OC San, a tax-exempt public entity, the payment of which taxes shall be the sole obligation of Licensee. Licensee shall indemnify, defend and hold harmless OC San against any and all such taxes, fees,
penalties or interest assessed, or imposed against OC San hereunder.
24.13 No Third-Party Beneficiaries. Neither anything in this Agreement nor any acts of Licensee shall authorize Licensee to act as agent, contractor, joint venture or employee of OC San for any purpose.
24.14 No Attorneys’ Fees. In the event of any dispute under the terms of this
Agreement the prevailing party shall not be entitled to attorneys’ fees.
24.15 [reserved]
24.16 Time is of the Essence. Time is of the essence for this Agreement.
24.17 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
25. NO DAMAGES
Licensee acknowledges that OC San would not enter into this Agreement if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of
business opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of the matters referred to in this Agreement. Accordingly, Licensee covenants and agrees on behalf of itself and its successors and assigns, not to sue OC San (either in its capacity as licensor in this Agreement or in its capacity as OC San) for damages (including, but not limited to, actual damages, economic damages, consequential
damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Agreement by OC San or for any dispute, controversy, or issue between OC San and Licensee arising out of or connected with this Agreement or any of the matters referred to in this Agreement, the parties agreeing that declaratory relief, injunctive relief, mandate and specific
performance shall be Licensee’s sole and exclusive judicial remedies. Notwithstanding the foregoing, nothing in this Section 25 shall limit Licensee's remedies as expressly set forth in this Agreement. 26. GOVERNMENT CLAIMS ACT
Licensee and OC San agree that in addition to any claims filing or notice requirements in this Agreement, Licensee shall file any claim that Licensee may have
Orange County Sanitation District Page 15 LEGAL02/44050596v6
against OC San in strict conformance with the Government Claims Act (Government Code sections 900 et seq.), or any successor statute.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below.
LICENSEE:
APPROVED AS TO FORM:
CITY ATTORNEY’S OFFICE
Date: __________________
By: ____________________________
Aaron C. Harp
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: ____________________
By: _______________________________
Grace K. Leung
City Manager
ATTEST:
Date: _________________
By:____________________________
Leilani I. Brown City Clerk
ORANGE COUNTY SANITATION DISTRICT Date: _____________________
By: _______________________________
Name: Ryan P. Gallagher Title: Board Chairman
APPROVED AS TO FORM:
Date: _________________
By: __________________________ Adriene Plescia Lynch
Alston & Bird LLP
ATTEST:
Date: _____________________
By: __________________________ Kelly A. Lore
Clerk of the Board
[END OF SIGNATURES]
Attachments: Exhibit “A”: Depiction of License Area and Banning Gate Exhibit “B”: Insurance Requirements Exhibit “C”: Form of Main Gate Access Request
LICENSOR:
Orange County Sanitation District Page A-1 LEGAL02/44050596v6
EXHIBIT “A” Depiction of the License Area
Orange County Sanitation District Page B-1 LEGAL02/44050596v6
Exhibit “B” Insurance Requirements 1. Provision of Insurance. Without limiting Licensee’s indemnification of OC San, and
prior to commencement of Work, Licensee shall require Licensee’s Contracted Representatives to obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and, in a form, satisfactory to OC San. Licensee agrees to cause Licensee’s Contracted Representatives to provide insurance in accordance with requirements set forth here.
If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to cause Licensee’s Contracted Representatives to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of
insurance in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by OC San’s Risk Manager. 3. Coverage Requirements. A. Workers’ Compensation Insurance. Licensee shall maintain or Licensee’s
self-insurance shall cover Workers’ Compensation Insurance providing
statutory benefits and Employer’s Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Licensee shall
require each Licensee’s Contracted Representatives to similarly maintain Workers’ Compensation Insurance and Employer’s Liability Insurance in accordance with California law for all of the Licensee’s Contracted Representatives’ employees. The insurer issuing the Workers’ Compensation insurance shall amend its policy by endorsement to waive all rights of
subrogation against OC San, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the City Projects and/or services (if any) contemplated by this Agreement. Licensee shall submit and cause Licensee’s Contracted Representatives to submit to OC San, along with
the certificate of insurance, a Waiver of Subrogation endorsement in favor of OC San, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the OC San Property upon which Licensee performs the City Projects and/or services (if any) contemplated by this Agreement.
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B. General Liability Insurance. Licensee’s self-insurance shall cover and Licensee shall cause Licensee’s Contracted Representatives to maintain commercial general liability insurance and, if necessary, umbrella liability
insurance, with coverage at least as broad as provided by Insurance Services
Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate and two million dollars ($2,000,000) completed operations aggregate. The policy shall cover liability arising from premises, operations,
products-completed operations, personal and advertising injury, and liability
assumed under an insured contract (including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Licensee’s self-insurance shall cover and Licensee shall cause Licensee’s Contracted Representatives to maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01covering bodily injury and property damage for all activities of Licensee arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for
each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverages maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against OC
San, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the OC San Property upon which Licensee performs the City Projects and/or services (if any) contemplated by this Agreement or shall specifically allow Licensee,
Licensee’s Contracted Representatives or others providing insurance evidence
in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against OC San and shall require similar written express waivers and insurance clauses from each of its Licensee’s Contracted Representatives. B. Additional Insured Status. All liability policies including general liability,
products and completed operations, excess liability, and pollution liability, automobile liability, protection and indemnity liability, and vessel pollution liability if required, but not including professional liability, shall provide or be endorsed to provide that OC San, its elected or appointed officers, agents,
officials, employees, volunteers, agents, the State of California Department of
Parks and Recreation, and any person or entity owning or otherwise in legal control of the OC San Property upon which Licensee’s Representatives perform the City Projects and/or services (if any) contemplated by this Agreement shall be included as additional insureds under such policies.
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C. Primary and Non-Contributory. Licensee’s and Licensee’s Contracted
Representatives insurance coverages shall be primary insurance and/or the
primary source of recovery with respect to OC San, its elected or appointed
officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the OC San Property upon which Licensee’s Representatives perform the City Projects and/or services (if any) contemplated by this Agreement. Any insurance or self-insurance maintained
by OC San shall be excess of Licensee’s and Licensee’s Contracted
Representatives’ insurance and shall not contribute with it. D. Notice of Cancellation. All policies shall provide OC San with thirty (30) calendar days’ notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days’ notice is required) for each
required coverage. 5. Additional Agreements Between the Parties. The Parties hereby agree to the following: A. Evidence of Insurance. Licensee shall provide certificates of insurance to
OC San as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers’ compensation and other endorsements as specified herein for each coverage. All of the executed documents referenced in this Agreement must be returned to OC San within ten (10) regular OC San business days after the Agreement is fully executed.
Insurance certificates and endorsements must be approved by OC San’s Risk
Manager prior to commencement of work. Current certification of insurance shall be kept on file with OC San at all times during the term of this Agreement. OC San reserves the right to require complete, certified copies of all required insurance policies, at any time. B. OC San’s Right to Revise Requirements. OC San reserves the right at any
time during the Term of the Agreement to change the amounts and types of insurance required by giving Licensee ninety (90) calendar days’ advance written notice of such change. C. Right to Review Subcontracts. Licensee agrees that upon request, all
agreements with Licensee’s Contracted Representatives or others with whom
Licensee enters into agreements with on behalf of Licensee will be submitted to OC San for review. Failure of OC San to request copies of such agreements will not impose any liability on OC San, or its employees. Licensee shall require and verify that all Licensee’s Contracted Representatives maintain insurance
meeting all the requirements stated herein, and Licensee shall ensure that OC
San is an additional insured on insurance required from Licensee’s Contracted Representatives. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13.
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D. Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of OC San to inform Licensee of non-compliance with any requirement imposes no additional obligations on OC
San nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Exhibit are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Licensee (or Licensee’s Contracted Representatives) maintains higher limits than the minimums shown above, OC San requires and shall be entitled to coverage for higher limits maintained by Licensee or
Licensee’s Contracted Representatives. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to OC San. F. Self-Insured Retentions. Licensee agrees not to permit Licensee’s Contracted Representatives to self-insure or to use any self-insured retentions
on any portion of the insurance required herein and further agrees that it will not allow any indemnifying Licensee’s Contracted Representatives to self-insure its obligations to OC San. If Licensee’s existing coverage includes a self-insured retention, the self-insured retention must be declared to OC San. OC San may review options with Licensee, which may include reduction or
elimination of the self-insured retention, substitution of other coverage, or other solutions. Licensee agrees to be responsible for payment of any deductibles on Licensee’s and/or any of its Licensee’s Contracted Representatives’ policies. G. OC San Remedies for Non-Compliance. If Licensee or any Licensee’s
Contracted Representatives fails to provide and maintain insurance as required herein, then OC San shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Licensee’s right to proceed until proper evidence of insurance is provided. Any amounts paid by
OC San shall, at OC San’s sole option, be deducted from amounts payable to
Licensee or reimbursed by Licensee upon demand. H. Timely Notice of Claims. Licensee shall give OC San prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee’s or Licensee’s Contracted Representatives’ performance under this
Agreement, and that involve or may involve coverage under any of the required
liability policies. OC San assumes no obligation or liability by such notice but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve OC San.
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I. Coverage not Limited. All insurance coverage and limits provided by Licensee or its Licensee’s Contracted Representatives and available or applicable to this Agreement are intended to apply to the full extent of
Licensee’s self-insurance and Licensee’s Contracted Representatives’
policies, as applicable. Nothing contained in this Agreement or any other agreement relating to OC San or its operations limits the application of such insurance coverage. J. Coverage Renewal. Licensee will cause Licensee’s Contracted
Representatives to renew the coverage required here annually as long as Licensee continues to perform any work under this Agreement or any other agreement with OC San. Licensee shall provide proof that policies of insurance required herein expiring during the Term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that
such coverage has been ordered shall be submitted prior to expiration. In the case of Licensee’s Contracted Representatives, a coverage binder or letter from Licensee’s Contracted Representatives’ insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage
must be provided to OC San within five (5) calendar days of the expiration of the coverages.
Orange County Sanitation District Page C-1 LEGAL02/44050596v6
EXHIBIT “C”
FORM OF MAIN GATE ACCESS REQUEST
Main Gate Access Form for After Hours Access to City of Newport Beach Lease site at OC San Plant No.2
1. Name of Company:
2. Name of Requestor:
3. Requestor phone #:
4. What work is to be performed at the lease site?
5. What hours do you anticipate to be onsite?
6. Please indicate the dates the access is needed.
Please email this completed Form to:
• anazaroff@ocsan.gov
• jfrattali@ocsan.gov
• kaleman@ocsan.gov
• seniorplantoperatorsp2@ocsan.gov
• operationssupsp2@ocsan.gov
OPERATIONS COMMITTEE
Agenda Report
Administration Building
10844 Ellis Avenue
Fountain Valley, CA 92708
(714) 593-7433
File #:2024-3398 Agenda Date:10/2/2024 Agenda Item No:5.
FROM:Robert Thompson, General Manager
SUBJECT:
SUPERCRITICAL WATER OXIDATION UPDATE
GENERAL MANAGER'S RECOMMENDATION
RECOMMENDATION:
Information Item.
BACKGROUND
Each month,staff delivers an informational presentation on topics of interest to the Board of
Directors.This month’s focus is an update to the Orange County Sanitation District’s demonstration
project for a Supercritical Water Oxidation facility.The General Manager will present a verbal report
(and pictures as they are available)on the recent trip to Orlando,Florida by the Board Chairman,
Board Vice-Chairman,and General Manager,where they observed the agreed upon initial
deployment of AirSCWO technology.This demonstration in Orlando aims to refine the technology
before deployment of a production 6-ton unit for OC San’s Fountain Valley facility.
RELEVANT STANDARDS
·Ensure the public’s money is wisely spent
·Safe, beneficial reuse of Biosolids
·Use all practical and effective means for resource recovery
ATTACHMENT
The following attachment(s)may be viewed on-line at the OC San website (www.ocsan.gov)with the complete agenda
package:
N/A
Orange County Sanitation District Printed on 9/24/2024Page 1 of 1
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ORANGE COUNTY SANITATION DISTRICT
COMMON ACRONYMS
ACWA Association of California
Water Agencies LOS Level Of Service RFP Request For Proposal
APWA American Public Works
Association MGD Million Gallons Per Day RWQCB Regional Water Quality
Control Board
AQMD Air Quality Management
District MOU Memorandum of
Understanding SARFPA Santa Ana River Flood
Protection Agency
ASCE American Society of Civil Engineers NACWA National Association of Clean Water Agencies SARI Santa Ana River Interceptor
BOD Biochemical Oxygen Demand NEPA National Environmental Policy
Act SARWQCB Santa Ana Regional Water
Quality Control Board
CARB California Air Resources
Board NGOs Non-Governmental
Organizations SAWPA Santa Ana Watershed
Project Authority
CASA California Association of
Sanitation Agencies NPDES National Pollutant Discharge
Elimination System SCADA Supervisory Control And
Data Acquisition
CCTV Closed Circuit Television NWRI National Water Research
Institute SCAP
Southern California
Alliance of Publicly Owned Treatment Works
CEQA California Environmental
Quality Act O & M Operations & Maintenance SCAQMD South Coast Air Quality
Management District
CIP Capital Improvement
Program OCCOG Orange County Council of
Governments SOCWA South Orange County
Wastewater Authority
CRWQCB California Regional Water
Quality Control Board OCHCA Orange County Health Care
Agency SRF Clean Water State
Revolving Fund
CWA Clean Water Act OCSD Orange County Sanitation District SSMP Sewer System Management Plan
CWEA California Water Environment Association OCWD Orange County Water District SSO Sanitary Sewer Overflow
EIR Environmental Impact Report OOBS Ocean Outfall Booster Station SWRCB State Water Resources
Control Board
EMT Executive Management Team OSHA Occupational Safety and
Health Administration TDS Total Dissolved Solids
EPA US Environmental Protection Agency PCSA
Professional
Consultant/Construction
Services Agreement
TMDL Total Maximum Daily Load
FOG Fats, Oils, and Grease PDSA Professional Design Services
Agreement TSS Total Suspended Solids
gpd gallons per day PFAS
Per- and Polyfluoroalkyl
Substances WDR Waste Discharge
Requirements
GWRS Groundwater Replenishment
System PFOA Perfluorooctanoic Acid WEF Water Environment
Federation
ICS Incident Command System PFOS Perfluorooctanesulfonic Acid WERF Water Environment & Reuse Foundation
IERP Integrated Emergency
Response Plan POTW Publicly Owned Treatment
Works WIFIA Water Infrastructure
Finance and Innovation Act
JPA Joint Powers Authority ppm parts per million WIIN Water Infrastructure Improvements for the
Nation Act
LAFCO Local Agency Formation
Commission PSA Professional Services
Agreement WRDA Water Resources
Development Act
ORANGE COUNTY SANITATION DISTRICT
GLOSSARY OF TERMS
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.
BENTHOS – The community of organisms, such as sea stars, worms, and shrimp, which live on, in, or near the seabed, also known as the benthic zone.
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.
BIOGAS – A gas that is produced by the action of anaerobic bacteria on organic waste matter in a digester tank that can be used
as a fuel.
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 farmland 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 (D/T) – The dilution at which the majority of people detect the odor becomes the D/T for that air sample.
GREENHOUSE GASES (GHG) – 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 SYSTEM (GWRS) – 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 OCSD provides 70
million gallons per day of drinking quality water to replenish the local groundwater supply.
LEVEL OF SERVICE (LOS) – Goals to support environmental and public expectations for performance.
N-NITROSODIMETHYLAMINE (NDMA) – A N-nitrosamine suspected cancer-causing agent. It has been found in the GWRS
process and is eliminated using hydrogen peroxide with extra ultra-violet treatment.
NATIONAL BIOSOLIDS PARTNERSHIP (NBP) – An alliance of the NACWA and WEF, with advisory support from the EPA. NBP is committed to developing and advancing environmentally sound and sustainable biosolids management practices that go beyond regulatory compliance and promote public participation to enhance the credibility of local agency biosolids programs and improved communications that lead to public acceptance.
PER- AND POLYFLUOROALKYL SUBSTANCES (PFAS) – A large group (over 6,000) of human-made compounds that are resistant to heat, water, and oil and used for a variety of applications including firefighting foam, stain and water-resistant clothing, cosmetics, and food packaging. Two PFAS compounds, perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA) have been the focus of increasing regulatory scrutiny in drinking water and may result in adverse health effects including developmental effects to fetuses during pregnancy, cancer, liver damage, immunosuppression, thyroid effects, and other effects.
PERFLUOROOCTANOIC ACID (PFOA) – An ingredient for several industrial applications including carpeting, upholstery, apparel, floor wax, textiles, sealants, food packaging, and cookware (Teflon).
PERFLUOROOCTANESULFONIC ACID (PFOS) – A key ingredient in Scotchgard, a fabric protector made by 3M, and used in numerous stain repellents.
PLUME – A visible or measurable concentration of discharge from a stationary source or fixed facility.
PUBLICLY OWNED TREATMENT WORKS (POTW) – A municipal wastewater treatment plant.
SANTA ANA RIVER INTERCEPTOR (SARI) LINE – A regional brine line designed to convey 30 million gallons per day 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.
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.
ORANGE COUNTY SANITATION DISTRICT
GLOSSARY OF TERMS
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.