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02-0204_ROCKWELL ELECTRTIC INCORPORATED_Construction ContractCONSTRUCTION CONTRACT THIS CONTRACT is made and entered into, to be effective, this � day of , 2002, by and between the CAPISTRANO VALLEY WATER DISTRICT, reinafter referred to as "District," and Rockwell Electric Incorporated, l hereinafter referred to as "Contractor." District and Contractor mutually agree as follows: y l Section 1. General Conditions. Contractor certifies and agrees that all the terms, conditions and obligations of the Contract Documents as hereinafter defined, the location of the job site, and the conditions under which the work is to be performed have been thoroughly reviewed, and enters into this Contract based upon Contractor's investigation of all such matters and is in no way relying upon any opinions or representations of District. It is agreed that this Contract represents the entire agreement between the parties. It is further agreed that the Contract Documents including the Notice Inviting Bids, Special Instructions to Bidders, if any, and Contractor's Proposal, are incorporated in this Contract by reference, with the same force and effect as if the same were set forth at length herein, and that Contractor and its subcontractors, if any, will be and are bound by any and all of said Contract Documents insofar as they relate in any part or in any way, directly or indirectly, to the work covered by this Contract. "Project" as used herein defines the entire scope of the work covered by all the Contract Documents. Anything mentioned in the Specifications and not indicated in the -1- Plans, or indicated in the Plans and not mentioned in the Specifications, shall be of like effect as if indicated and mentioned in both. In case of discrepancy in the Plans or Specifications, the matter shall be immediately submitted to District's Engineer, without whose decision Contractor shall not adjust said discrepancy save only at Contractor's own risk and expense. The decision of the Engineer shall be final. Section 2. Materials and Labor. Contractor shall furnish, under the conditions expressed in the Plans and Specifications, at Contractor's own expense, all labor and materials necessary, except such as are mentioned in the Specifications to be furnished by the District, to construct and complete the Project, in good workmanlike and substantial order. If Contractor fails to pay for labor or materials when due, District may settle such claims by making demand upon the surety to this Contract. In the event of the failure or refusal of the surety to satisfy said claims, District may settle them directly and deduct the amount of payments from the Contract price and any amounts due to Contractor. In the event District receives a stop notice from any laborer or material supplier alleging non- payment by Contractor, District shall be entitled to deduct all of its costs and expenses incurred relating thereto, including but not limited to administrative and legal fees. Section 3. Description of Project. The Project is described as: addition of intrusion switches on five reservoir tanks in the City of San Juan Capistrano. -2- Section 4. Plans and Specifications. The work to be done is shown in the Scope Letter dated December 11, 2001, from Rockwell Electric Incorporated. Said Scope Letter and any revisions, amendments or addenda thereto are attached hereto and incorporated herein as part of this Contract and referred to by reference. Section 5. Time of Commencement and Completion. Contractor agrees to commence the Project within fifteen (15) calendar days from the date set forth in the "Notice to Proceed" sent by District and shall diligently prosecute the work to completion within sixty (60) calendar days from the date of the "Notice to Proceed" issued by the District excluding delays caused or authorized by the District as set forth in Sections 7, 8 and 9 hereof. Section 6. Time is of the Essence. Time is of the essence of this Contract. As required by the Contract Documents, Contractor shall prepare and obtain approval of all shop drawings, details and samples, and do all other things necessary and incidental to the prosecution of Contractor's work in conformance with an approved construction progress schedule. Contractor shall coordinate the work covered by this Contract with that of all other Contractors, subcontractors and of the District, in a manner that will facilitate the efficient completion of the entire work in accordance with Section 5 herein. District shall have complete control of the premises on which the work is to be performed and shall have the right to decide the time or order in which the various portions of the work shall be installed or -3- the priority of the work of other subcontractors, and, in general, all matters representing the timely and orderly conduct of the work of Contractor on the premises. Section 7. Excusable Delays. Contractor shall be excused for any delay in the prosecution or completion of the Project caused by acts of God; inclement weather which exceeds the number of calendar days estimated by the District and set forth in Section 5 hereof; damages caused by fire or other casualty for which Contractor is not responsible; any act, neglect or default of District; failure of District to make timely payments to Contractor; late delivery of materials required by this Contract to be furnished by District; combined action of the workers in no way caused by or resulting from default or collusion on the part of Contractor; a lockout by District; or any other delays unforeseen by Contractor and beyond Contractor's reasonable control. District shall extend the time fixed in Section 5 for completion of the Project by the number of days Contractor has thus been delayed, provided that Contractor presents a written request to District for such time extension within fifteen (15) days of the commencement of such delay and District finds that the delay is justified. District's decision will be conclusive on the parties to this Contract. Failure to file such request within the time allowed shall be deemed a waiver of the claim by Contractor. No claims by Contractor for additional compensation or damages for delays will be allowed unless Contractor satisfies District that such delays were unavoidable and not the result of any action or inaction of Contractor and that Contractor took all available measures to mitigate such damages. Extensions of time and extra -4- compensation as a result of incurring undisclosed utilities will be determined in accordance with Section 9-6 of the General Provisions. The District's decision will be conclusive on all parties to this Contract. Section 8. Extra Work. The Contract price includes compensation for all work performed by Contractor, unless Contractor obtains a written change order signed by a designated representative of District specifying the exact nature of the extra work and the amount of extra compensation to be paid all as more particularly set forth in Section 9 hereof. District shall extend the time fixed in Section 5 for completion of the Project by the number of days reasonably required for Contractor to perform the extra work, as determined by District's Engineer. The decision of the Engineer shall be final. Section 9. Changes in Project. A. District may at any time, without notice to any surety, by written order designated or indicated to be a change order, make any change in the work within the general scope of the Contract, including but not limited to changes: 1) in the Specifications (including drawings and designs); 2) in the time, method or manner of performance of the work; 3) in the District -furnished facilities, equipment, materials, services or site; or 4) directing acceleration in the performance of the work. B. A change order shall also be any other written order (including direction, instruction, interpretation or determination) from the District which causes any change, -5- provided Contractor gives the District written notice stating the date, circumstances and source of the order and that Contractor regards the order as a change order. C. Except as provided in this Section 9, no order, statement or conduct of the District or its representatives shall be treated as a change under this Section 9 or entitle Contractor to an equitable adjustment. D. If any change under this Section 9 causes an increase or decrease in Contractor's actual, direct cost or the time required to perform any part of the work under this Contract, whether or not changed by any order, the District shall make an equitable adjustment and modify the Contract in writing. Except for claims based on defective specifications, no claim for any change under paragraph (B) above shall be allowed for any costs incurred more than twenty (20) days before the Contractor gives written notice as required in paragraph (B). In the case of defective specifications for which the District is responsible, the equitable adjustment shall include any increased direct cost Contractor reasonably incurred in attempting to comply with those defective specifications. E. If Contractor intends to assert a claim for an equitable adjustment under this Section 9, it must, within thirty (30) days after receipt of a written change order under paragraph (A) or the furnishing of a written notice under paragraph (B), submit a written statement to the District setting forth the general nature and monetary extent of such claim. The District may extend the thirty (30) day period. Contractor may include the statement of claim in the notice under paragraph (B) of this Section 9. F. No claim by Contractor for an equitable adjustment shall be allowed if -6- made after final payment under this Agreement. G. Contractor hereby agrees to make any and all changes, furnish the materials and perform the work that District may require without nullifying this Contract. Contractor shall adhere strictly to the Plans and Specifications unless a change there from is authorized in writing by the District. Under no condition shall Contractor make any changes to the Project, either in additions or deductions, without the written order of the District and the District shall not pay for any extra charges made by Contractor that have not been agreed upon in advance in writing by the District. Contractor shall submit immediately to the District written copies of its firm's cost or credit proposal for change in the work. Disputed work shall be performed as ordered in writing by the District and the proper cost or credit breakdowns therefore shall be submitted without delay by Contractor to District. Section 10. Liquidated Damages for Delay. Not applicable. Section 11. Contract Price and Method of Payment. District agrees to pay and Contractor agrees to accept as full consideration for the faithful performance of this Contract, subject to any subsequent additions or deductions as provided in approved change orders, the sum of Four Thousand Six Hundred Eight dollars ($4,608.00) as itemized on the attached Scope Letter. Within thirty (30) days from the commencement of work, there shall be paid to the Contractor a sum equal to ninety percent (90%) of the value of the actual work completed plus a like percentage of the value of material suitably stored at the worksite, -7- treatment plant or approved storage yards subject to or under the control of the District, since the commencement of the work as determined by the District. Thereafter, on a schedule issued by the District at the commencement of the job which shows a minimum of one payment made to the Contractor per month for each successive month as the work progresses and the request for payment due dates from the Contractor to meet the payment schedule, the Contractor shall be paid such sum as will bring the total payments received since the commencement of the work up to ninety percent (90%) of the value of the work completed since the commencement of work as determined by the District, less all previous payments, provided that the Contractor submits the request for payment prior to the end of the day required to meet the payment schedule. The District will retain ten percent (10%) of the amount of each such progress estimate and material cost until the Final Payment. Payments shall be made on demands drawn in the manner required by law, accompanied by a certificate signed by the District's Engineer, stating that the work for which payment is demanded has been performed in accordance with the terms of the Contract, and that the amount stated in the certificate is due under the terms of the Contract. Partial payments on the Contract price shall not be considered as an acceptance of any part of the work. Section 12. Substitution of Securities in Lieu of Retention of Funds. Pursuant to Public Contract Code Section 22300 et seq., the Contractor will be entitled to post approved securities with the District or an approved financial institution in order to have the District release funds retained by the District to insure performance -8- of the Contract. Contractor shall be required to execute an addendum to this Contract together with escrow instructions and any other documents in order to effect this substitution. Section 13. Completion. Within ten (10) days after the contract completion date of the Project, Contractor shall file with the District's Engineer its affidavit stating that all workers and persons employed, all firms supplying materials, and all subcontractors upon the Project have been paid in full, and that there are no claims outstanding against the Project for either labor or material, except those certain items, if any, to be set forth in an affidavit covering disputed claims, or items in connection with Stop Notices which have been filed under the provisions of the statutes of the State of California. District may require affidavits or certificates of payment and/or releases from any subcontractor, laborer or material supplier. Section 14, Contractor's Employees' Compensation. A. Davis -Bacon Act: Contractor will pay and will require all subcontractors to pay all employees on said Project a salary or wage at least equal to the prevailing rate of per diem wages as determined by the Secretary of Labor in accordance with the Davis -Bacon Act for each craft or type of worker needed to perform the Contract. The provisions of the Davis - Bacon Act shall apply only if the Contract is in excess of Two Thousand Dollars ($2,000.00) or when twenty-five percent (25%) or more of the Contract is funded by federal assistance. If the aforesaid conditions are met, a copy of the provisions of the -9- Davis -Bacon Act to be complied with are incorporated herein as a part of this Contract and referred to by reference. B. General Prevailing Rate: District has ascertained from the State of California Director of Industrial Relations the general prevailing rate of per diem wages and the general prevailing rate for legal holiday and overtime work in the locality in which the work is to be performed for each craft or type of work needed to execute this Contract, and copies of the same are on file in the Office of the Engineer of District. The Contractor agrees that not less than said prevailing rates shall be paid to workers employed on this public works contract as required by Labor Code Section 1774 of the State of California. C. Forfeiture For Violation: Contractor shall, as a penalty to the District, forfeit Fifty Dollars ($50.00) for each calendar day or portion thereof for each worker paid (either by the Contractor or any subcontractor under it) less than the prevailing rate of per diem wages as set by the Director of Industrial Relations, in accordance with Sections 1770-1780 of the California Labor Code for the work provided for in this Contract, all in accordance with Section 1775 of the Labor Code of the State of California. D. Travel and Subsistence Pay: Section 1773.8 of the Labor Code of the State of California, regarding the payment of travel and subsistence payments, is applicable to this Contract and Contractor shall comply therewith. E. Apprentices: -10- Section 1777.5, 1777.6 and 1777.7 of the Labor Code of the State of California, regarding the employment of apprentices, is applicable to this Contract and the Contractor shall comply therewith if the prime contract involves Thirty Thousand Dollars ($30,000.00) or more or twenty (20) working days, or more; or if contracts of specialty Contractors not bidding for work through the general or prime Contractor are Two Thousand Dollars ($2,000.00) or more or five (5) working days or more. F. Workday: In the performance of this Contract, not more than eight (8) hours shall constitute a day's work, and Contractor shall not require more than eight (8) hours of labor in a day from any person employed by him hereunder except as provided in paragraph (B) above. Contractor shall conform to Article 3, Chapter 1, Part 7 (Sections 1810 et seg.) of the Labor Code of the State of California and shall forfeit to the District as a penalty, the sum of Twenty-five Dollars ($25.00) for each worker employed in the execution of this Contract by Contractor or any subcontractor for each calendar day during which any worker is required or permitted to labor more than eight (8) hours in any one calendar day and forty (40) hours in any one week in violation of said Article. Contractor shall keep an accurate record showing the name and actual hours worked each calendar day and each calendar week by each worker employed by Contractor in connection with the Project. G. Record of Wages; Inspection: Contractor agrees to maintain accurate payroll records showing the name, address, social security number, work classification, straight -time and overtime hours - 11 - worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by it in connection with the Project and agrees to require that each of its subcontractors does the same. All payroll records shall be certified as accurate by the applicable Contractor or subcontractor or its agent having authority over such matters. Contractor further agrees that its payroll records and those of its subcontractors shall be available to the employee or employee's representative, the Division of Labor Standards Enforcement, and the Division of Apprenticeship Standards and shall comply with all of the provisions of Labor Code Section 1776, in general. Section 15. Surety Bonds. No bonds are required. Section 16. Insurance. A. Contractor is also aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or undertake self-insurance in accordance with the provisions of that Code and will comply with such provisions before commencing the performance of the. work of this Contract. B. Contractor and all subcontractors will carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against District, its officers, agents and employees and shall issue a certificate to the policy evidencing same. C. Contractor shall at all times carry, on all operations hereunder, bodily -12- injury, including death, and property damage liability insurance, including automotive operations, bodily injury and property damage coverage. All insurance coverage shall be in amounts specified by District in the Insurance Requirements and shall be evidenced by the issuance of a certificate in a form prescribed by the District and shall be underwritten by insurance companies satisfactory to District for all operations, subcontract work, contractual obligations, product or completed operations, all owned vehicles and non -owned vehicles. Said insurance coverage obtained by the Contractor, excepting workers' compensation coverage, shall name the District, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the District, as additional insureds on said policies. D. Before Contractor performs any work at, or prepares or delivers materials to, the site of construction, Contractor shall furnish certificates of insurance evidencing the foregoing insurance coverages and such certificates shall provide the name and policy number of each carrier and policy and that the insurance is in force and will not be canceled without thirty (30) days' written notice to District. Contractor shall maintain all of the foregoing insurance coverages in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of District by Contractor under Section 17 of this Contract. Notwithstanding nor diminishing the obligations of Contractor with respect to the foregoing, Contractor shall subscribe for -13- and maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and issued by a company admitted in California and having a Best's Guide Rating of A -Class VII or better: Worker's Compensation In accordance with the Workers' Compensation Act of the State of California -- Minimum of $1,000,000 Public Liability, in the form of $1,000,000, per occurrence, either Comprehensive General or alternatively, Liability or Commercial General $1,000,000 aggregate, Liability written on a per -occurrence separate for this project. basis Automobile liability, including $1,000,000 per occurrence non -owned and hired vehicles District or its representatives shall at all times have the right to inspect and receive the original or a certified copy of all said policies of insurance, including certificates. Contractor shall pay the premiums on the insurance hereinabove required. Section 17. Risk and Indemnification. All work covered by this Contract done at the site of construction or in preparing or delivering materials to the site shall be at the risk of Contractor alone. Contractor agrees to save, indemnify and keep District, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this Contract, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees harmless against any and all liability, claims, judgments, costs and demands, including demands arising from injuries or death of persons (Contractors' employees included) and damage -14- to property, arising directly or indirectly out of the obligations herein undertaken or out of the operations conducted by Contractor, save and except claims or litigation arising through the sole negligence or sole willful misconduct of District, and will make good to and reimburse District for any expenditures, including reasonable attorneys' fees District may incur by reason of such matters, and if requested by District, will defend any such suits at the sole cost and expense of Contractor. Section 18. Stop Notice Administration. District reserves the right to charge Contractor for District's actual adminstrative time (including attorney's time) to administer and process stop notices filed by Contractor's subcontractors, materialmen, or any other claimant or lienholder. Section 19. Termination. A. This Contract may be terminated in whole or in part in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Contract through no fault of the terminating party, provided that no termination may be effected unless the other party is given: (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party prior to termination. B. This Contract may be terminated in whole or in part in writing by the District for its convenience, provided that the Contractor is given (1) not less than ten (10) calendar days' written notice (delivered by certified mail, return receipt requested) of intent to terminate, and (2) an opportunity for consultation with the terminating party -15- prior to termination. C. If termination for default or convenience is effected by the District, an equitable adjustment in the price provided for in this Contract shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other work, and (2) any payment due to the Contractor at the time of termination may be adjusted to cover any additional costs to the District because of the Contractor's default. If termination for default is effected by the Contractor, the equitable adjustment shall include a reasonable profit for services or other work performed, but no adjustment will be allowed for anticipated profits. The equitable adjustment for any termination shall provide for payment to the Contractor for services rendered and expenses incurred prior to the termination, in addition to termination settlement costs reasonably incurred by the Contractor relating to commitments which had become firm prior to the termination. D. Upon receipt of a termination action under paragraphs (A) or (B) above, the Contractor shall (1) promptly discontinue all affected work (unless the notice directs otherwise), and (2) deliver or otherwise make available to the District all data, drawings, specifications, reports, estimates, summaries and such other information and materials as may have been accumulated by the Contractor in performing this Contract whether completed or in process. E. Upon termination under paragraphs (A) or (B) above, the District may take over the work and may award another party an agreement to complete the work under this Contract. -16- Contractor agrees to perform all work under this Contract in accordance with the District's designs, drawings and specifications. The Contractor guarantees for a period of at least one (1) year from the date of substantial completion of the work that the completed work is free from all defects due to faulty materials, equipment or workmanship and that he shall promptly make whatever adjustments or corrections which may be necessary to cure any defects, including repairs of any damage to other parts of the system resulting from such defects. The District shall promptly give notice to the Contractor of observed defects. In the event that the Contractor fails to make adjustments, repairs, corrections or other work made necessary by such defects, the District may do so and charge the Contractor the cost incurred. The performance bond shall remain in full force and effect through the guarantee period. The Contractor's obligations under this clause are in addition to the Contractor's other express or implied assurances under this Contract or state law and in no way diminish any other rights that the District may have against the Contractor for faulty materials, equipment or work. Section 20. Assignment. No assignment by the Contractor of this Contract or any part hereof, or of funds to be received hereunder, will be recognized by the District unless such assignment has had prior written approval and consent of the District and the surety. Section 21. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of -17- this Contract, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which it may be entitled. If any action is brought against the Contractor or any subcontractor to enforce a Stop Notice or Notice to Withhold, which names the District as a party to said action, the District shall be entitled to reasonable attorneys' fees, costs and necessary disbursements arising out of the defense of such action by the District. The District shall be entitled to deduct its costs for any Stop Notice filed, whether court action is involved or not. Section 22. Resolution of Disputes. The District and the Contractor shall comply with the revisions of California Public Contracts Code Section 20104, et seg., regarding resolution of construction claims for any claims which arise between the Contractor and the District. Section 23. Notices. Any notice required or permitted under this Contract may be given by ordinary mail at the address set forth below. Any party whose address changes shall notify the other party in writing. To District: Capistrano Valley Water District 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Public Works Director To Contractor: Rockwell Electric Incorporated 545 Corporate Drive Escondido, CA 92029 IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract as of the date first hereinabove written. ATTEST: "District" 0 TER DISTRICT George 7CafborgLl h, General Manager R. Monahan, Clerk of the Board APPROVED AS TO FORM: By: John R. Sh w, District Counsel "Contractor" ROCKWELL RIC INCORPZORAAT D ByjZj6 W SKE