Loading...
HomeMy WebLinkAboutPresley Homes Inc; 1999-12-15; CMWD 96-306t e 0 December 16,1999 Presley Homes, Inc. Attn: Mr. Sean R. Dyer 15373 Innovation Drive, Suite 380 San Diego, CA 92128 RE: Aaenda Bill M61: AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF WHITE SANDS DRIVE 36-INCH PIPELINE IMPROVEMENTS; CMWD PROJECT NO. 96-306. Enclosed for your reference is a copy of Resolution No. 1070, which was adopted at the Carlsbad City Council Meeting on 12/07/99. Also enclosed is one fully executed original agreement for your files. If you have questions concerning the contract, please contact Mr. William Plummer, at the Carlsbad Municipal Water District, at (760) 438-2722. Since re I y , fld A%------ Karen Mckinnon Office of the Carlsbad City Clerk Enclosures (2) % La pxG- A&-(+: k /=X L-7 %%-+-&-c W&/+it-- .fu Q ek 4 0 0 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR IMPROVEMENTS; CMWD Project No. 96-306 CONSTRUCTION OF WHITE SANDS DRIVE 36-INCH PIPELINE THIS AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF WHITE SANDS INCH PIPELINE IMPROVEMENTS; CMWD PROJECT NO. 96-306, dated as of f&wsmb@r -, 1999, ("Agrel made at Carlsbad, California, between PRESLEY HOMES, INC., a California corporation ("Presley"), and the C MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of IS Subsidiary District of the City of Carlsbad ("District"), with reference to the following recitals: December 13 RECITALS A. Presley is the record owner of certain real property located in the City of San Marcos, Calif( particularly described as: A portion of Section 17, 18, 19 and 20 Township 12 South, Range 3 West, San Bern and Meridian; APN 221 -01 0-1 3, 222-01 0-23, 221 -021 -09, 221 -031 -(25-28) ("Meadowlark Estates"). 6. Meadowlark Estates lies within the jurisdiction of, and does and will continue to receive all of its wai directly from and through, the Vallecitos Water District. Meadowlark Estates does not lie within the jurisdic District and does not and will not receive water services directly from the District. C. The District owns, operates, and maintains an existing 36-inch water transmission main and app which is aligned through portions of Meadowlark Estates planned to be preserved in open space ("Old Water h District would like to cause a portion of the Old Water Main to be relocated to iie within portions of the rigi- certain public and private roads, named White Sands Drive and Emerald Sea Way, respectively, which I designed and will construct within Meadowlark Estates (that portion of the relocated old Water Main is referri Agreement as the "Work"). D. The District has requested Presley to install the Work as Presley constructs White Sands Drive a Sea Way. The District and Presley recognize and acknowledge that the Work exceeds the infrastructurl required of Presley in connection with its build-out of Meadowlark Estates. 1 P:0133982.07:46058.008 24-NOV-99 e e E. Presley is willing to accommodate the District subject to the terms, conditions, and limitatio Agreement. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of whict acknowledged, the parties hereto agree as follows: 1. 2. The Recitals are true and correct. PRES LEY’S 0 B L I GATlON S. (a) In consideration of the District‘s reimbursement and other undertakings as set forth herei agrees to install the Work. The Work shall include the following improvements, as set forth on Exhibit “A”: apF 2,740 linear feet of 36-inch diameter potable water pipeline (700 pressure zone) beginning at the northwest corn( of Unit 5 of Meadowlark Estates, running southeast to Emerald Sea Way, then south and then east within Er Way to its intersection with White Sands Drive, then south along White Sands Drive until its intersection with LC 2 of Meadowlark Estates, together with all necessary valves and appurtenances, including those necessary to ( Work to the District’s existing water transmission facility in Palomar Airport Road at the northwest corner of Lot of Meadowlark Estates, and to connect the Work to the Old Water Main at the intersection of White Sands Drivc of Unit 2 of Meadowlark Estates. The Work is shown on Drawing No. 384-1, Sheets 1 through 5, prepared by J & Associates, Carlsbad Municipal Water District Project No. 96-306 signed as approved by the District (“Plans”) (b) Presley shall complete the Work no later than April 15, 2000, provided that the District timc all of its obligations under this Agreement. Any portion of the Work completed before the effective date of this shall, subject to the other provisions of this Agreement, also satisfy this Agreement. (c) Presley shall install the Work substantially in compliance with the Plans. 3. THE DISTRICT’S OBLIGATIONS. (a) The District shall reimburse Presley in the manner described in this Section 3 and Sectio below, for the total costs incurred by Presley: (i) in installing the Work, including without limitation attorneys’ fee incurred in the preparation of this Agreement, engineering review and coordination, soils testing, pipeline SUI staking costs, and the costs of materials and labor; and (ii) the costs of all engineering re-design, materials, anc of water facilities within Units 2 and 5 of Meadowlark Estates required as a result of the design and alignment (the estimated costs of engineering re-design, materials, and installation of water facilities within Units : 2 P:0133982.07:46058.008 24-NOV-99 e a Meadowlark Estates required as a result of the design and alignment of the Work are set forth on Exhibit “6) “Total Cost”). The Total Cost, including the costs estimated on Exhibit “B’, is currently estimated to be $278,58L (b) The District shall reimburse Presley an amount ( the “Reimbursement Amount” ) equal to actual Total Cost (regardless of whether the actual Total Cost meets or exceeds the estimated Total Cost z Subsection 3(a), above); plus, ( ii ) an overhead allocation of four percent ( 4% ) of the actual Total Cost in lif reimbursement for Presley’s cost incurred for salary and benefits for staff of Presley’s home offices, supervision level of on-site superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds, ins bond premiums, expenses for meetings with and presentations to governmental agencies which issue permits o regulate project approval, (collectively, the “Overhead Costs”); plus, (iii) an additional two and one-half percen the actual Total Cost for construction administration, construction fees and permit fees advanced by Presley incidental costs. The actual Total Cost shall include all costs associated with the installation of the Work and t described on Exhibit “B.” 4. ACCOUNTING OF COSTS. (a) Upon completion of the Work, Presley shall present the District with a complete ar accounting of the costs and expenses advanced by Presley in connection with the Work and the facilities de Exhibit “B.” Upon its receipt of a written request therefor from the District, Presley will allow an audit of suct expenses to be prepared at the District’s expense by certified public accountants specified by the District. undertaken by the District pursuant to this Subsection 4(a) shall not extend the District’s time for performancc the following subsections of this Section 4 and Section 5, below. (b) The District acknowledges that Presley has selected Burtech Pipeline (the “Contractor”) a: to install the Work because the Contractor submitted the lowest responsive bid to install the Work, and the Dis approves Presley’s selection of the Contractor as contractor to install the Work. (c) During the installation of the Work, Presley shall retain detailed payment records for all i Reimbursement Amount for use by the District in auditing the costs and expenses advanced by Presley in con the Work and the facilities described on Exhibit “B.” Presley’s request for final payment pursuant to Sub: below, shall include copies of change orders, invoices, lien releases, and receipts for payments m Documentation”) to evidence the completion and payment for each item of the Reimbursement Amount. 3 P:0133982.07:46058.008 24-NOV-99 e 0 submission to the District Engineer of its request for final payment, Presley shall obtain necessary lien release Contractor. (d) Presley shall send its request for final payment to the “District Engineer” of the District to! the Work Documentation. The District Engineer shall consider and approve the request pursuant to this Agreer District Engineer objects to any items comprising the Reimbursement Amount, the District Engineer shall notifi writing, together with reason(s) for objection, within ten (IO) calendar days of receipt of Presley’s request. Failu notify Presley shall be deemed the District Engineer’s approval of the request. In the event the District En( object, Presley and the District Engineer shall meet within five (5) calendar days of Presley’s receipt of Engineer’s written objection(s) to discuss the disputed amount and attempt to resolve the matter through negotiation. (e) Notwithstanding the foregoing, if Presley disputes the District Engineer’s determina Reimbursement Amount or believes that a sum established by the District Engineer is not consistent with provisions of this Agreement, then Presley may elect to: ( i ) appeal the District Engineer’s decision to tt Directors (and thereafter, at Presley’s option, a Court of proper jurisdiction) for final determination; or ( ii ) dispute for the review and recommendation of a neutral and independent civil engineer qualified in engineer and construction and mutually approved by the District and Presley; provided, however, said engineer’s reco shall be non-binding and shall not preclude Presley from thereafter appealing the District Engineer’s decision : in item ( i ), above. 5. REIMBURSEMENT SCHEDULE. (a) Upon the Contractor’s commencement of the Work (which commencement shall be deen upon the issuance to the Contractor of any permits necessary to begin the Work, or, if no permits are necess‘ the Contractor begins trenching to install the Work), the District shall remit to Presley a payment of $74,173.2 equal to 25% of the estimated Reimbursement Amount (the “Mobilization Payment”). The Mobilization Payn deemed an off-set against, and not in addition to, the total Reimbursement Amount owing upon completion oft (b) Upon the Contractor’s installation of the Work (which installation shall be deemed to oc installation of the 36-inch steel waterline within the trenches and the backfilling of the trenches), the District I Presley a payment of $207,684.96, that payment being equal to 70% of the estimated Reimbursement 4 P:0133982.07:46058.008 24-NOV-99 * 0 “Installation Payment”). The Installation Payment shall be deemed an off-set against, and not in addition tc Reimbursement Amount owing upon completion of the Work. (c) Upon Presley’s submittal to the District Engineer of the Work Documentation and all certificates, and other documents necessary to indicate the completion of the Work and the ability to put the Wor if any, the District shall remit to Presley a payment equal to the Reimbursement Amount less the Mobilization Pa the Installation Payment. 6. ADDITIONAL OBLIGATIONS OF THE DISTRICT. (a) The District acknowledges that Presley intends to remove a portion of the Old Water Presley has completed installation of the Work and before Presley completes grading of Unit 5 of Meadowla The District agrees to complete inspection and approval of the removal of the portion of the Old Water Mail hours of Presley’s request for that inspection and approval. (b) The District acknowledges that Presley is planning to begin construction of model homes c Meadowlark Estates on or about January 1, 2000, and that Presley requires the District to timely condu inspections of Presley’s installation of the Work and to timely accept the Work upon its completion, but in no than December 15, 1999. The District hereby agrees to conduct periodic inspections of Presley’s installation c so as to enable the District to accept the completed Work no later than December 15, 1999. (c) Notwithstanding anything to the contrary in this Section 6 or in any other provision of this nothing in this Agreement shall be construed to require Presley to begin grading Unit 5 of Meadowlark Estates specific date, to begin construction of the model homes on Unit 5 of Meadowlark Estates prior to any specific begin any other improvements, including without limitation improvements to Emerald Sea Way or White Sanl any specific date. (d) The District certifies that it has obtained all permits or other governmental approvals, if ar for the installation for the Work and the removal of the portion of the Old Water Main. 7. I N D EM N I F I CAT I 0 N . (a) The District hereby agrees to indemnify, defend, protect, and hold harmless Presley, agents, employees, consultants, inspectors, contractors, subcontractors, successors, and assigns (indi “Indemnitee”, collectively, the “lndemnitees”) from and against any and all liens, claims, causes of action, d2 compensation, restitution, judicial or equitable relief, liabilities, demands, suits, obligations, losses, penalties, 5 P:0133982.07:46058.008 24-NOV-99 e 0 and expenses of every kind, nature, and description (including actual attorneys’ fees and costs) resulting indirectly from: (i) the District‘s design of the Work; (ii) selection of the Contractor; or (iii) wage provisions, includi limitation any injury to or death of persons, or damage to or loss of property, and any mechanic’s liens or clain arising therefrom or related thereto (collectively, the “Activities”). The District‘s obligations under this Secti’ survive the termination of this Agreement. (b) The District hereby waives, releases, acquits, and forever discharges each of the lndemni maximum extent permitted by law, of and from any and all claims, actions, causes of action, demands, rights damages, losses, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, fi unforeseen, that now exist or which may arise in the future on account of or in any way growing out of or conn the Activities. THE DISTRICT EXPRESSLY WAIVES ANY OF ITS RIGHTS GRANTED UNDER CALIFOf CODE SECTION 1542, WHICH PROVIDES AS FOLLOWS: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Notwithstanding the foregoing, the release set forth above is not intended to, and shall not, release o any tortuous acts or omission of Presley in any way related to this Agreement. 8. CONTRACTORS INSURANCE AND INDEMNIFICATION. The District acknowledges that Presley intends to enter into a contract for the work with the C substantially the form set forth on Exhibit “C (the “Construction Contract”). Presley shall require the Contrac into an Addendum to Contract in substantially the form set forth on Exhibit “D” (the “Addendum”), concurrl Contractor’s execution of the Construction Contract. The Addendum requires the Contractor to add the Dis City of Carlsbad as additional insureds pursuant to Section lO.l(e) of the Construction Contract and to namc and the City of Carlsbad as third-party beneficiaries to the Construction Contract, including without limitation i beneficiaries under Section 8: Indemnification of the Construction Contract. 9. MISCELLANEOUS. (a) Diswtes; Claims. If a dispute should arise regarding the performance or interpret: Agreement, the following procedure shall be used to resolve any question of fact or interpretation not formall) the parties. Such questions, if they become identified as a part of a dispute among persons operating under tl 6 P:0133982.07:46058.008 24-NOV-99 e 0 of this Agreement, shall be reduced to writing by an officer of Presley (“Officer”) or the District’s Executivc (“Executive Manager”). A copy of such documented dispute shall be forwarded to both parties involved recommended methods of resolution which would be of benefit to both parties. The Executive Manager, or Of receipt, shall reply to the letter, including a recommended method of resolution, within ten calendar (IO) d resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwar Board of Directors for their resolution through the office of the City Manager of the City of Carlsbad. The Board c may, but is not obligated to resolve the dispute. If the Board of Directors considers the dispute, and directs a s’ action of the Board of Directors shall be binding upon the parties involved, although nothing in this procedure SI the parties seeking remedies available to them at law. (b) Jurisdiction. Presley agrees and hereby stipulates that the proper venue and jurisdiction fo of any disputes between the parties arising out of this agreement is San Diego County, California. (c) Obliaations and Benefits Not Runnina With Land; No Third Partv Beneficiaries. This Agret bind and inure to the benefit of the parties and their respective successors and assigns. However, it shall not r land or be recorded, and all payments due from the District shall be made to Presley or such assignee designates in writing. This Agreement shall not be deemed to confer any rights upon any individual or entity wh party hereto; the parties hereto expressly disclaim any such third-party benefit. (d) Notice. Unless otherwise specifically provided herein, all notices, demands or other comi given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy maile day, or as of the second business day after mailing by United States certified mail, return receipt requestt prepaid, addressed as follows: If to Presley: Presley Homes, Inc. Attention: Mr. Sean R. Dyer Presley Homes 15373 Innovation Drive, Suite 380 San Diego, CA 92128 Telephone: (61 9) 451 -6300 Facsimile: (619) 487-7307 7 P:0133982.07:46058.008 24-NOV-99 e 0 with a copy to: Cynthia L. Eldred, Esq. Solomon Ward Seidenwurm & Smith, LLP 401 "6 Street, Suite 1200 San Diego, CA 92101 Telephone: (619) 238-4814 Facsimile: (61 9) 21 3-4755 If to District: Carlsbad Municipal Water District Attention: Mr. William Plummer 5950 El Camino Real Carlsbad, California 92008 Telephone: (760) 438-2722, Extension 7126 Facsimile: (760) 431 -1 601 or to such other address or to such other person as any party shall designate to the othei purpose in the manner set forth above. (9 Counterparts. This Agreement may be executed in any number of counterparts, each of wh deemed an original, but all of which, taken together, shall constitute one and the same instrument. (9) Governina Law. This Agreement shall be governed by, and construed in accordance with, the State of California. (h) Comdete Aareement. This agreement contains the entire agreement between the parties \i to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or writte the parties with respect to the matters set forth herein. (i) Amendment. This agreement may be amended by a written instrument executed by the Presley (including for this purpose any successors of Presley, to the extent of their ownership of real pro1 Meadowlark Estates), except that no amendment regarding the provisions for reimbursement to Presley sh unless executed by Presley. (j) Term. This Agreement shall be effective as of the date hereof, and shall terminate on the the date the District fully reimburses Presley the Reimbursement Amount, or (ii) January 1, 2005. 8 P:0133982.07:46058.008 24-NOV-99 0 0 (k) No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party ber (I) Pavments to Presley. Any payments to Presley by the District hereunder shall be made Presley Homes, Inc. and shall be forwarded to the following address, or to such other address as Presley 5 writing to the General Manager of District: c/c Presley Homes, Inc. Attention: Mr. Sean R. Dyer 15373 Innovation Drive, Suite 380 San Diego, CA 92128 (n) District Authoritv. The District warrants, represents and agrees that it has the legal i collect the funds that it will use to reimburse Presley. The District further warrants, represents and a( has the legal authority to pay these funds to Presley. These warranties, representations and agreen material inducement to Presley to enter into this Agreement. In the event the District lacks legal authori the fees necessary to pay Presley, the District shall pay the amount due Presley out of other funds E rate as if it had collected the fees. 9 P:0133982.07:46058.008 24-NOV-99 a 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth E ?L Executed by PRESLEY this 2 9 day of November, 1999. December, 1999. PRESLEY: PRESLEY HOMES INC. Executed by DISTRICT this Js day of (SEAL) (Proper notarial acknowledgment of execution of PRESLEY must be attached.) (Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer mi corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secrc corporate seal empowering that officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the execute the instrument.) APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: jL542k4&* ant City Attorney P:0133982.07:46058.008 24-NOV-99 10 a 0 STATE OF CALIFORNIA ) ) ss. ,- COUNTY OF SAN DIEGO ) ?iWWb& a, 1999, before personally appeared &&a\, $& , personally of satisfactory evidence) tl person($) whos&ame(@ is/= subscribed to the within instrument and acknowledged to me that he/sRe/tkefr e the same in his/k/th& authorized capacityfies), and that by his/k/their signature on the instrument the perso entity upon whose behalf the person@’) acted, executed the instrument. WITNESS my hand and official seal. j ‘1 * [SEAL] 1, 11 Pro1 33982 07:46058.008 24-NOV-99 a 0 EXHIBIT “A” DESCRIPTION OF THE WORK [TO BE ATTACHED] P:0133982.07:46058.008 24-NOV-99 12 . -- 0 (I, z Exhibit A Estimated Total Construction Cost for 36'' Waterline: 36" Steel Waterline 2,572 LF $41.40 $106,480.80 Remove Interfering 33" Waterline 73 LF $35.00 $2,555.00 Construct SOW0 & Blind Flanges 2 EA $2,500 * 00 $5,000.00 Install 36" to 33" Reducer 1 EA $3,500.00 $3,500.00 Install 36" Butterfly Valve 2 EA $3 ,SOO.OO $7,000.00 Install 2" AVAR Assy. 7 EA $3,250.00 $22,750.00 -=. Install 6" B.O. Assy. 2 EA $5,600 .OO $1 1,200.00 Install Cathodic Bonding 4 EA $750.00 $3,000.00 Install Cathodic Test Stations 3 EA $2,750.00 $8,250.00 Field Fabricate 36" Bends 6 EA $2,500.00 $1 5,000.00 Repair Slope 1 LS $1,000.00 $1,000.00 Traffic Control 1 LS $950,00 $950.00 Restore Paved Surface (ifneeded) 1 LS $1,200.00 $1,200.00 Backfill Treich (above pipe zone) 5,500 Ton $5.50 $30,250.00 Haul Trench Spoil to Parksite 6,038 Cy $3.50 $21,133 .OO Connect to Existing 2 EA $7,550.00 $1 5,lOO.OO Construction Staking 1 LS $1 120.00 $1,120.00 , 0 0 Construction Staking Calculations 1 LS $172.00 $172.00 Engineering ReviewKoordination 1 LS $1,978.00 $1,978.00 Soils Engineering 1 LS $ 5,350.00 $ 5,350.00 _-_-_--_-------------------------------------”------------------------~--------------------~-- Estimated Total Construction Cost: $262,988.80 z % 0 0 EXHIBIT “B ESTIMATED COSTS OF ENGINEERING RE-DESIGN, MATERIALS AND INSTALLATION OF WATER FAC WITHIN UNITS 2 & 5 OF MEADOWLARK ESTATES REQUIRED AS A RESULT OF THE DESIGN AND ALIGh THE WORK [TO BE ATTACHED] 13 P:0133982.07:46058.008 24-NOV-99 0 0 Exhibit B Estimated Total Design Changes to Unit 2 and Unit 5: 0 Add. Manholes Per New Design 5 EA $2,500.00 $12,500.00 Engineering Design and 1 1,s $3,096.00 $3,096.00 Drafting Changes to Existing Improvement Plans. ................................................................................................... Estimated Total Cost: $15,596.00 ’. ’. TC 0 0 EXHIBIT SHEET “C’ FORM OF CONSTRUCTION CONTRACT [TO BE ATTACHED] P:0133982.07:46058.008 24-NOV-99 14 0. PRESLEY HOMES San Diego 0 .f . . AI CONTRACT FOR MEADOWLARK INFRA- CONTRACT NUMBER: 402510 OF'1000 UNITS 2, 3, 4, 5. 6 t853P4 WATER SYSTEM TRACT NUMSER: VENDOR NO: 2591 7% PROJECT: Meadowlark Infra VENDOR NAME: Burtech Pipelhe, Inc. COST CENTER 7116Q520001 VENDOR PHONE NUMBER: (760) 634-282 COST CODE: 2460 OFFSITE SUBCONTRACT AGREEMENT THIS SUBCONTRACT AGREEMENT ("Agreement") is made November 22, 1999, by and PRESLEY HOMES. a California Cornoration, whose offices are located at 15373 Innovation Drive, Suite Diego, California 921 28 ("Contractor") and Burtech Pipeline, Inc., whose offices are located at 102 Se Encinitas, GA 92024-3203 ("Subcontractof'). Please review the plans and all appropriate specifications. carefully before you sign this contract If j any questions or concerns about any of the materials speclfled or any of the designs or methods of cpn called for on the plans or specfffcations, please discuss it with the purchasing agent before signing the By signing the contract, you are agreelng to perform any work you contract for in strict compliance with 1 and specifications. No substitutlons of msterfals will be allowed, and no changes from the pl specifications will be allowed. If you do not perform your work in strict compliance with the pi specifications. you will be held responsible, in addition to any other remedies the Contractor or Owner rn to perform all work, supply all materials and pay all costs necessary to bring your work into compliance plans and specifications. SECTION 1: DESCRIPTION OF THE WORK f.1 This Agreement pertains exclusively to TractdLots located in the State of California ("Job). 1.2 Subcontractor agrees to furnlsh at Subcontrsctor's own cost and expense all labor. equipmen1 supplies, materials. machinery, tools, cartage, Insurance, services and other facilities of eveFy E description ("Labor and Materials*) requlred for the prompt and efficlent execution of the work generaily d in Exhibit "6" attached. Subcontractor shall ex~rt Subcontractor's best efforts, skllf and judgment z exercise all due diiigence to complete the work in accordance with the hlghest standards of the industry a most expeditious, sound and econarnlcal manner. 4.3 lo the event the work to be performed by Subcontractor shall be described by reference to a s the Contract Documents (as defined in paragraph 4.2 below) such reference shall not be deemed to Subcontradofs obligation to perform onty such work, but rather the work shall Include any Item of Lz Materials reasonably inferred from the Contract Documents or customarily furnished by a subcc perfomhg work in this trade whether or not such work is shown or mentioned in the Contract Docurnt work performed by Subcontractor shall conform strictly to the Contract Documents, and all extra H changes shall be made pursuant to and In sttlct compliance with this Agreement. '8.4 Subcontractor shall not acsrgn, subcontract or otherwise ttXhSfer any portion of the work to be pc by Subcontractor without Rat obtainlng the express written consent of Contractor. 4.5 Subcontractor agrees to meet the production schedule as directed by Contractor. 4.6 Promptly after the execution of thls Agreement, Subcontractor shall furnish the Contractor with (I material suppliers that will deliver material to the Job site, (il) a list of subcontractors that will petform wc Job site, and (iii] an estimate of the cost of such materials and subcontract work so that the Contractor ( the preliminary notices received for materials delivered to Subcontractor at the Job site and subconn performed at the Job sfte. SECTION 2: CONTRACT PRICE 2.1 Contractor agrees to pay to Subcontractor, at the time and In the manner provided for in S below, the sum of $606,998.00 (Contract prLce) . CONTRACTOR'S tNlTlALS SUBCONTRACTOR'S INITIALS- Page 1 of 1f SSLVTTZ + S3WOH A3lS3tld OS;:ZT ZQ5 TV9'ON ' . 2.2 It is understocld and @xd that the Contract Price shall not k@,oreared or decreased e accordance with the provisions of this Agreement. and excepting thOSt9 Increases in the Contract Prlc pursuant to the provisions of this Agreement, Subcontractor shall be liable for end shall Indemniw i Contractor free and harmless from all other Increases in the cost of the work to be performed by Subcontr SECTION 3: PAYMENT SCHEDULE ' 3.1 Subcontractor shall be entitled to receive progress payments for each phase of the Work, I however, that Subcontractor shall not be paid until Subcontractor has complied wlth ail the provision Section. Subcontractor shall prepare and maintain separate records and invoices for the work describc Agreement and for extra work and changes performed pursuant to a work order as described in Section 5 3.2 With respect to each application for a progress payment for work performed pursuant to this & Subcontractor shall submit to Contractor such documentation as may be required by Contractor, i without limitation, (i) an invoice in a form satisfactory to Contractor: (li) labor and material lien releases by Subcontractor, Subcontractor's laborers, Subcontractofs subcontractors and all suppliers who materials to the Job through the date of the invoke. all in a form satisfactory to Contractor; (iii) E documents required by Contractor to verify that all indebtedness for the Labor and Materials used in per of the work through the date of the invoice has been fully paid by Subcootractor; and (W) if the progress includes payment for extra work or changes in the work, a copy of the work order executed by C authorizing such extra work or change. 3.3 Prior to submittal by Subcontractor to Contractor of Subcontractor's Invoice for a progress pursuant to Section 3.2 above, Subcontractor and Contractor's superintendent for the Job shall agre quantity of work completed for which payment shall be Included in such progress payment- 3.4 Subcontractor shall submit to Contractor for Contractor's approval the invoices and other d referred to in paragraphs 3.2 ahd 3.3 above promptly after completion of the work specified therein. 3.5 Provided that Subcontractor is not In default under this Agreement or any other agree1 Contractor, that Subcontractor has complied with all of the provisions of this Section, and that C approves the invoices and other documents submitted by Subcontractor, Contractor agrees to pay Sub4 the amounts requested in the application for progress payment (less the amounts retained or charge Subcontractor pursuant to this Agreement) in approximately 3040 days from the date of receipt by the C of the progress payment documents. All of the above referenced conditions are conditions precede money being owed to Subcontractor for all offsite work. Contractor shall retain an amount equal to or L percent (Ten) of the requested amounts ("Retention"), which Retention shall be paid to Subcuntractc Contractor has received all of the documentatlon required pursuant to Section 3.2, and b) forty days hat since the work of improvement has been approved and accepted by the City, County or other govc agency having jurisdiction of the work of improvement. or if no governmental approval and acce necessary. then forty days have passed since the recording of the notice of completion or if no completion has been recorded and no gouernmental approval and acceptance is necessary. ninety five c passed since the approval and acceptance of the work by the Contractor. Contractor shall also have th addition to any other retention rights hereunder, to retafn from payments due to Subcontractor amounts to Cover all contracts for which Contractor or Owner have received preliminary notices or for which mec other liens have been recorded, until releases satisfactory to Contractor have been delivered to C Payments for quantities of Labor or Materials in excess of the quantities specified as to be prc Subcontractor in connection with the work shall be made only after verification by Contractofs clvil engir engineer andlor job superintendent that such Labor or Materials have actually been provided. 3.6 Any payment made hereunder shatt not be construed 8s evidence of acceptance of any part of All sums received by Subcontractor under this Agreement are received in trust for the express use and 1 paying in full all Labor and Materials furnished to Subcontractor In the performance of this Agreement. any payment, or any part of it. shall vest in Subcontractor or be used for any other purpose. until Sub has first paid in full all Labor and Materials furnished as of the date of the invoice to Subcontractor by z who may have supplied Labor andlor Materiab used in the work described herein. Contractor shall hav to make payments to Subcontractor by checks payable jointly to Subcontractor and his e subcontractors. suppliers. or any of them, and to make payments directly to persons or entities Supplyir material to Subcontractor if preliminary notices have been filed by the persons or entities supplying sucl Materials to Subcontractor. SECTION 4: INOEPENDENT INVESTIGATION 4-1 Subcontractor warrants that Subcontractor has read and is fully familiar with the provisic Contract Documents, as defined in paragraph 4.2 below, that Subcontractor Is satisfied by its own in) regarding all vle conditions affecting the work to be done and materials to be furnished. and that Sub agrees to perform the work described In this Agreement in strict accordance with the Contract Docurne upon such investigation and research and not upon any estimate or other Information received from Cot any other person. Based on Subcontractor's indepehdent investigation, Subcontractor agrees and ach that the Contract Price is just and reasonable compensation for all the work to be performed by Sut: CONTRACTOR'S 1NTnnI-S SUBCONTRACTOR'S IN ITlALS Page Z of 11 TV9-0N SSLVTEZ t S3WOH A3lS3tld 0s:z-c EQd a3 a \. I , pursuant to this Agreement. T,. reement represents the entire agreemt etween the parties hereti es~mate or bid nor any verbal agreement or conversation between the parties hereto or with any othei either before or after the executlon of this Agreement, shall affect or modify any of the provisions or ot set forth herein. 4.2 "Conwct Documents" as used herein shall mean and refer to (a) this Agreement, (b) the drawin1 and specifications and all written modificatlons thereto made in accordance with this Agreement and (c) L purchase or change orders issued during the course of the work. The Contract Documents are incc herein by this reference and shall have the same force and effect as if said Documents were set forth herein. Subcontractor understands and agrees that he is and will be bound by said Contract Document as ~ey relate in part or in any way, directly or Indirectly, to the work which is the subject of this Agreemer SECTION 5; EXTRA WORK AND CHANGES IN THE WORK 5.1 Subcontractor agrees to make all changes in the work. elther as additions or deletions. and to pl extra work that Contractor may require pursuant to this Section, and the same shall not nullify this Ag Under no circumstances shall Subcontractor make any change in the work or perform any 0xtra Y Contractor has issued a written work order authorizing such work and agreeing to the amount of cornper be paid to Subcontractor, Nothing contained in this Agreement shall be construed to modify Conhactot eliminate any portion of the work which Contractor deems unnecessary for the completion of the work a: or to make such changes as Contractor may deem necessary. In the event Contractor shall eliminate a 1 the work, the Contract Price shall be decreased In an amount equal to the actual reduction in cost. . 5.2 If Subcontractor shall make any unauthorized change in work or perform any unauthorized e' which affects the scope of the work or the expense of other trades, Subcontractor shall be liable for all ( expenses incurred by Contractor as the result thereof. 5.3 Subcontractor shall not perform any work directly for a potential homebuyer on a hon construction prior to the transfer of title from Contractor to said homebuyer. SECTION 6: COMMENCEMENT AND PROGRESS OF THE WORK 0.1 Subcontractor shall commence work within three (3) days after notification from Contractor continue- said work diligently to completion with sufficient Labor and Materials on the Job at all times. 6.2 Subcontractor shall maintain a competent superintendent acceptable to Contractor on the Job a' when Subcontractor's work is in progress to insure that the work is completed in strict accordance with Documents, and the superintendent shall be authorized to represent Subcontractor as to a11 phases of Subcontractor shall notify Contractor prior to the commencement of the work who Subcontractovs super shall be and shall glve prior notice to Contractor before any change of superintendents shall become Subcontractor shall remove any employee from the Job who is unacceptable to Contractor. 6.3 Contractor shall have access to any and all parts of Subcontractor's storage facilities and CUI grounds. and may at any time inspect, sample or require tests to be taken on any materials fumishec furnished by Subcontractor, Subcontractor shall be responsible for the good condition of the work acceptance thereof by Contractor. All goods and materials placed on the job-site by Subcontractor, or to the jobsite for the account of Subcontractor, shall remain the responsibility of Subcontractor until under this Agreement and accepted by Contractor. Subcontractor bears all risk of loss until such install acceptance. Subcontractor shall take proper care of all building materials belonging to Subcontrado1 patties on the project, and shall pay for all buildings, building materials, landscaping, sidewalks, curbs property wasted or damaged as a result of Subcontractor's operations, whether belonging to Subcon other parties. 6.4 There are substitutions of materials or variations in contract, any way whatsoever from the plans and specificatior the written approval of the project architect and, where appropriate. the project structural or soils Wenever any manufactured article, implement or serles of articles or implements is mentioned in the Oocuments by trade name, it is intended to establish a standard of quality or merit and Subcontractor shi such specific article or implement. The intent of this paragraph is to require quality materials and work Substitutes of equal merit may be used by Subcontractor only upon the prior written consent of Contract work described herein shall require the installation of materials or equipment furnished by others. it sh responsibility of Subcontractor to examine the items so provided and thereupon to handle, store and ir such skill and care as to insure a satlsfactory installation. Loss'or damage due to acts of Subcontracto charged to Subcontractor. All work is to be done in strlct compliance with the plans and specifications. 6.5 Subcontractor warrants that goods or materiais furnished as part of the work shall confor Contract Documents andlor other descrlptions furnished by Contractor and that the goods or material! merchantable. free from defect, new, of good workmanship and quality, and fit for any particular purpose the goods or materials are required. All such warranties shall survive inspection, testing and aoceptar goads and shafl extend to future performance of the goods or materials. If the goods or materials fail tc SUBCONTRACTOR'S INiTtALS- CONTRACTOR'S INITIALS Page 3 of 11 SS;LVTEZ + S3WOH hEIlS3ad OS:ZT PO0 Tt79-0N 0 ()I ,. I toft;@ Contract Oocumdnts and,,. other descrlptlvns, Subcontrador shall p ptly replace same. No pz a&epr;ince by Contractor shall constitute 8 waiver of the foregoing, nor shall anythlng herein be con exclude or limit any warranties Implied by law. All materials SUpptied shall be free of hazardous SUI including. but nat limited to, asbestos. 6.6 Subcontractor shall. at his own cost and expense, (i) maintain Subcontractor's mntractor's licen! other licenses required by law; (iI) pay all taxes and fees of every kind that may be Imposed by any QOV< authority on the Labor and Materials furnished by Subcontractor. and (iii) keep himself fully inform€ comply with all Federal and State laws, City and County ordinances. codes and regulations whish aft employed on the Job, the materials to be used, or the conduct of the work. Submnmctor ward represents that Subcontractor and Subcontractor's personnel performing services hereunder are pmped] and will remain properly licensed during the term hereof under at1 applicable laws and regulation performance of the work to be performed hereunder. Further, Subcontractor shall complete the wor accordance with all such laws, ordinances, codes and regulations. If the Contract Documents do no with the requirements of the above speciffed authorities, the requirements of such authorities shall prevc work shall be completed by Subcontractor in conformance with such requirements, and no additional cc tion shall be allowed therefor, with the exceptton that Subcontractor shall be reimbursed for any additi resulting from the enactment or modlflcation of any law, ordinance, code or regulation (excluding la agreements) after the date of this Agreements, which enactment or modification was not conternplat contract mxxments. 6.7 Subcontractor shall be charged for all costs and expenses incurred in connection with rein necessitated by unacceptable materials of workmanship. 6.8 Subcontractor shall check all figures, dimensions and measurements Set forth in the F specifications prior to commencing work, and any discrepancies apparent to him must be report Contractor immediately for adjustment. Failure to comply In this respect, and any additional costs res( such noncompliance, shall be charged to the Subcontractor. 6.9 Subcontractor is solely responslble and liable for executing Its work in a safe and prudent m: establishing safety procedures and for protectlng its employees and the public from property damage an during the performance of the Agreement. Safe Job-site conditions and safe working practices are responsibility of Subcontractor and shall be followed at all times. Any unsafe conditions or workin caused by or attributable to Subcontractor shall be Immediately remedied by and at the sole e: Subcontractor, and Contractor shall not be liable to Subcontractor's employees or any third party 1 conditions related to or caused by Subcontractor's performance of this Agreement. Subcontractor is s responsible and liabie for all aspects of its use of work space jointly used by different subcontrac Contractor specifically does not retain supervisory control of such joint use areas for purposes of I unsafe conditions. SECTION 7: GUARANTEE 7.T Subcontractor expressly guarantees Contractor against all loss or damages arising from an) rnateriab or workmanship furnished under this Agreement for a period of two (2) years from the date tf improvement has been approved and accepted by the City, County or other governmental agen jurisdiction of the work of improvement. or if no governmental apprdval and acceptance is necessary years from the date the notice of completion Is recorded or if no notice of completion has been rea years from the date the work of improvement Is approved and accepted by the Contractor. 7.2 Upon receipt of notification from Contractor, Subcontractor shall correct at Subcontractor's sol6 expense any defects or deficlencies in- the materials or wofkmanship which arise during the Subcontractofs guarantee. If Subcontractor shall fail to correct the defects andlor deficiencies within SI (72) hours of receipt of notice from Contractor, Contractor may without further notice provide the Materials necessary to correct the defects andlor deficiencles and the cost thereof shall be chars Subcontractor. In the event there are not sufficient funds to satisfy such deduction. Subcontractor shall Contractor for such cost immediately upon receipt of written demand from Contractor. SECTION 7(A).1: LIQUIDATED DAMAGES 7(A).1 If Subcontractor fails to complete the work on or before the time scheduled for c Subcontractor. in addition to all other remedies hereunder, shall pay Contractor the sum of NIA as damages for such delay for each day after the scheduled time fqr completion that the work remains unf no liquidated damages are specified in this paragraph. Contractor may still pursue any other remedy : this Agreement. or available at law or in equity. If liquidated damages are specified in this paragraph. recognize that the general damages caused by any such breach by Subcontractor are very difficult or to estimate accurately, and that the liquidated damages amount Listed is their best reasonable forecE damages. SUBCONTRACTOR'S INITIALS CONTRACTOR'S INITIALS Page 4 of 17 SSLV'TZZ + S3WOH A3lS3tld 0S:Z-C SQCI ?t79-0N . . ' 'SECYON 8: INOEMNtFICATk@ (I, 8.1 Tne Insurance rneintained by Subcontractor in accordance with the Insurance Requirements shc me performance of Subcontractor's indemnification obllgations as set forth herein. All work Covered agreement done at the Project site. or In preparing or delivering materials or equipment (Or providing ser the Project). or any or all of them to or for the Project, shall be at the sole risk of the Subcontractor. Subcr shall, to the Fullest extent permitted by law, with respect to all such work whlch Is covered by or Incident agreement defend all claims through legal counsel acceptable to Contractor snd indemnify and hold Cj and any of its partners, Lender and any other party In lnteresf designated by Contractor. or their employees or representatives (collectlvely referred to as 'Indemnltees") harmless from and against ar liability, loss, damage, cost, expense. attorneys' fees including all such expenses incurred in any at enforce this indemnification provision. awards, fines, or judgments by reason of the death or bodiJy persons, injury or damage to tangible property, including the loss of use therefrom, and arising, di indirectly. out of Subcontractor's operations. Subcontractor shall indemnify and defend Contractor UI section regardless of Subcontractor's negligence or lack thereof, for claims by third parties against Cod the basis of stn-ct liability arising aut of or related to Subcontractor's operations or work as describe agreement. Provided, however, that the Subcontractor shall not be obligated under this agreement to il the lndemnitees with respect to damages which are ultimately determined by a court of competent juris be due to the sole negligence or willful misconduct of the Jndsmnlteeb. THIS fNDEMNlN EXP INDEMNIFIES CONTRACTOR AND OWNER AGAINST ALL LIABILITY. CLAIMS, SUITS. DAMAGE JUDGMENT OR EXPENSE, INCLUDING Al7ORNEY'S FEES, WHICH CONTRACTOR OR OWNEF INCUR BECAUSE OF CONTRACTOR'S OR OWNER'S NEGLIGENT FAILURE TO DISCOVER OR RE DANGEROUS CONDITION CREATED BY SUBCONTRACTOR. 8.2 In any and all claims against the lndemnitees by any employee of the Subcontractor, subcontractor, anyone directly or indirectly employed by any of them or anyone for whose act any of then liable, the indemnification obligation under this paragraph shall not be limited in any way by any lirnitatic amount or type of damages, Compensation or benefits payable under any Workers' or Warkers' Corny: acts, disability benefit acts or other employee benefit acts. Said indemnity is intended to apply during tt of this Subcontract and shall survive the expiration or termination OF the Subcontract until such time as account of any matter covered by such indemnity is barred by the appllcable statute of limitations. 8.3 Subcontractor shall be responsible for the safety of Subcontractor's agents, employees, indt contractor and suppliers. Subcontractor shall indemnify, defend and hold Contractor hamless againd damage, claims, liabilities, cost or pmperty damage suffered by Subcantractor. or Subcontractor's employees, independent contractors or suppliers. 8.4 Subcontractor shall defend, protect, indemnify and hold Contractor harmless against all claims costs, expenses or other IOSSeS arising by reason of any liens for Labor andlor Materials furnished to Subcontractor agrees that Subcontractor shall within ten (10) days of receipt of notice from Cantractor c effect of any such lien to be removed from the job and any legal proceedings relating thereto to be dismi the event Subcontractor shall fail to do so, Contractor may take any actlon It may deem appropriate to ci lien to be removed andlor action dismissed and the cost thereof, together with reasonable attorney's fees immediately due and payable to Contractor from Subcontractor. 8.5 Subcontractor shall be liable for and shall reimburse Contractor for all damages, costs, exper other losses resulting from Subcontractor's delay in prosecution of the work and for any damage or other Contractor's property or to the units belng constructed resulting from the negligence or misco SUbGQntraCtQr or Subcontractor's employees or agents. 8.6 In the event Contractor is served with any Writ of Attachment, Wfft of Execution, Stop Notice, I Levy (Federal or State). or other legal process pertalnlng to any debt or alleged debt of Subcontractor's ai of work performed under this Agreement, Contractor shall be entitled to retain any and all monies 1 Subcontractor for Labor and Materials furnished by Subcontractor. It is understood and agreed that the of the retained monies is to guarantee that Contractor shall have sufflctent funds with which to t Subcontractors obligations under this Agreement In the event that the legal proceedings out of wh process arose should. in the Contractor's opinion, make it difficult or impossible for Submntractar to f work described herein. 8.7 Each of the foregoing paragraphs in this Section creates independent duties on the part of Subc to defend Subcontractor's expense by counsel satisfactory to Contractor and to indemnify Contractor as in said paragraphs. Each duty shall extend to all claims, liability, losses, damages, costs and expenses ( reasonable attorney's fees) arising before or after the completion of the work performed by Subcontract( event. however. shall Subcontractor be obligated to defend or indemnify Contractor with respect to negfigence or willful misconduct of Contractor or Contractor's employees or agents other than Subcontrac SECTION 9: LABOR 9.9 In the event the Subcontractor is a union signatory, Subcontractor agrees that all work perfc Subcontractor, and its material men and suppliers, in pursuance of this Agreement shall be performed CONTRACTOR'S INITIALS SUBCONTRACTOR'S INITIALS, Page 5 of 11 SSLVTEZ + S3WOH AZilS3ad OS:ZT 900 TV9 'ON persons as' are acceptztble unG a I1 appllcable union requirements. Subc a ctor further agrees to 001 ' all-of the provisions of all master and/or short form labor agreements now In existence and any ret extensions thereof. 9.1 Subcontractor shall not be excused from full performance under this Agreement by reason picketing or any other labor activities. Delays are failure to diligently prosecute performance u Agreement shall constitute a default, regardless of whether or not such delay was a result of labor disput 9.3 Subcontractor agrees to present to Contractor, immediately upon determination and commencement of any work hereunder, a complete list of subcontractors. 'material men and suppliers U performing at and/or providing materials to the Job and the names, addresses and telephone numbc unions, if any, said subcontractors, material men and suppliers are affiliated with. 9.4 Subcontractor agrees to exerclse good faith and best efforts to prevent labor disputes at the Jol agrees to fully cooperate with Contractor in every manner possible to resolve labor trouble. and mitigate on the Job-site, if necessary. SECTION IO: INSURANCE 10.1 Subcontractor shall procure and malntaln, at its sole cost and expense, the following coverages: (a) Worker's ComDensation: Coverage A. Statutory Benefits. Caverage 6. Employer's Liability Bodily Injury by accident Bodily Injury by disease Bodily Injury by disease $1,000,000 each accident $1,000,000 policy limit $1,000,000 each employee Coverage must include a waiver of subrogation endorsement. (b) Commercial Auto Caveraae: Auto Liability limits of not le55 than $1,000,000 each accident. combined Bodily Injury and F Damage Liability insurance including but not limited to owned autos, hired or nondwned au (c) Cornmehensive General Liabilitv or Commercial General Liabifitv: The limits of liability shall not be less than: (I) Comprehensive General Liability: $1,000,000 Combined Single Limit Bodily Injury/Property Damage per Occurrence - OR (2) Commercial General Lfability: The limits of liability shall not be less than: Each Occurrence Limit $1,000,000 Personal Advertising Injury Limit $1,000,000 Praducts/Compteted Operations Aggregate Limit $1,000,000 General Aggregate Limit $1,000,000 (other than ProductslCompleted Operations) (3) Bath policy forms must include: ((a)) Premises and Operations coverage with no explosion. collapse. or underground d (XCU) exclusions. ((b)) Products and Completed Operations coverage. Subcontractor agrees to maintain coverage for a minimum of one (1) year following completion of the Project and to to name Contractor and any other parties in interest as Additional Insured(s) for M one year Period. ' ((c)) Blanket contractual coverage with Employee Exclusion deleted, or its equivalent. CONTRACT0 R'S INITIALS SUBCONTRACTOR'S INITIAL3 Page6 of 11 Lad TV9.ON SSLPTEZ t S3WOH A3lS3ad 0S:IT ((d)) Woad For,. e roperty Damage Coverage including con @ ted operations or its qui? ((e)) An endorsement naming Contractor and any other parties in interest as additional insured(s) under the coverage specified under Insurance Requirement 3. Such endorsement shall contaln the following provision: 'it is understood and agreed that coverage afforded by this Policy shall also apply to Presley Homes, its officers, directors, agents, servants employees. divisions, subsidiaries, partners, shareholders and affiliated companies as additional insureds but only with respect to legal tiability 01 claims caused by, arising out of. or resulting from the acts or omissions of the named insured or of others performed on behalf of the named insured." The above endorsement shall be acceptable as well as IS0 forms CGZOIOB 1118: or CG2026 11/85 or equivalent. IS0 forms GG2010A or CGZOlOS 10/93 or their equivalent are not acceptable. Any form that does not grant additional insured stal under the products/cornpleted operations coverage IS NOT ACCEPTABLE. ((0) An endorsement statlng: "Such coverage as is afforded by this poficy for the benefil the additional lnsured(s) Is prlrnary and any other coverage maintained by such add insured(s) shall be non-contributing with the coverage provided under VIis policy." ((g)) Coverage on an uoccurrence" form. "Claims Made" and " Modified Occurrence" are not acceptable. ((h)) An endorsement stating that any aggregate limits apply on a "per project" basis. 10.2 Additional Insurance Requirements (a) The Commercial General Liability policies obtained and maintained by Subcontractor shatl t to apply to all bodily injury, property damage, personal injury and other covered loss, however om occurring during the policy term; shall contain endorsements naming the Contractor and any other i parties designated by the Contractor (e.9. the owner of the Property or a lender) as additional insurec contain endorsements providing that such Insurance as is afforded under Subcontractof% policy is pi respects Contractor and that other insurance maintained by Contractor is excess and non-contributory insurance required hereunder; shall provide for severability of interests; shall provide that an act or on one of the named insured shall not reduce or avoid cqvemge to the other named insured; shall afford for all claims based on acts. omissions, injury and damage, which claims occurred or arose (or the onsel occurred or arose) in whole or in part during the policy period; and shall include the following cc Personal Injury; Employees as additional Insureds; Equipment Liability Coverage; Premises and 0 Coverage, including Operation of Independent Contractors; Explosion Collapse and Underground Coverage; Broad Form Property Damage Coverage, including Completed Operations or its equivale Damage Legal Liability Coverage; Fire Legal Liability coverage: Premises Medical Payments C Extended Bodily Injury Coverage; I ncldental Malpractice Coverage; Broad Form Contractual Liability t specifically cavering all liability, includlng Subcontractor's Indemnity obligations, assumed by Subcontrac Agreement; and Products Liability and Completed Operations Coverage which,shall specifically cover li the work and materials provided for herein. Claims made and modified occurrence policies are not accel (b) tf this agreement is for services related or arising out of grading, movement of soil, erosio soils testing. design or construction of drainage, lots, pads or any other earth or soils work, the policies contain or be subject to any provision or endorsement whlch excludes coverage for subsidence. The cer insurance for any such Agreement shall contain a statement that the policy is not subject to any pn: endorsement which excludes coverage for su bsldence or earth movement. (c) The Business Auto Insurance shall include the following forms and shall provide the coverage witf-! combined single limits of liability fOr bodily injury and property damage of not lass than S1 Owned Automobiles; Hired Automobiks and Non-Owned Automobiles. (d) All policies must contain an endorsement affording Contractor an unqualified thirty (30) day5 cancellation, nonrenswal, expiration or reduction in coverage. ' (e) All policies shall be in a form satisfactory to Contractor and shall be issued by companies liz most recent Best's rating guide as having not less than an A:V rating. (9 Subcontractor shall furnish Contractor with certificates of insurance with the required endc for each policy required hereunder and copIeS of such policies before Contractor's entrance onto the Jo commencement of the work hereunder. In addition, Subcontractor shall require each subcontractor SUE CONTRACTOR'S IN Ill ALS, CONTRACTORS INll7ALS Page 7 of 11 SSLPTEZ + SSIWOH AZllS3tld 0s:zT 88d TP9'ON r) e6 be malntained by Subcc . , Con'bactor.with certificates of dance evidencing the insurance requir subcontractors hereunder before such subcontractor's entrance onto the Job-site and commencernei subcontractor's work. Subcontractor shall also furnish to Contractor, at least thirty (30) days before the date of expiring policies, certificates of Insurance showing that all premiums have been paid for forthcoming policy perlod, .I (9) At the time of a loss, Subcontractor shall promptly provide Contractor with a written report 01 (h) In the event of any reductlon or exhaustion of an aggregate annual limit of liability or an aggregate policy limit of liabiiity, Subcontractor shall then obtain additional Insurance to replenish thc liability herein provided. (i) Subcontractor shall require that each of its subcontractors also separately maintain at1 coverage's that Subcontractor is required to maintain herein. (j) Any and all other Commercial General Llability policies or coverages obtained. mair otherwise available to the Subcontractor which include or are applicable to Contractor as an addition2 shall also cover liability arising out of or related to the work and materials provided for in this Agreeme primary and non-contributory. 10.3 Subcontractor's obligation to carry Insurance as herein provided shall not limit or modify in an) other obligation of Subcontractor under this Agreement, including, without limitation, the oblig Subcontractor under Paragraph 8 of this Agreement. 10.4 If Subcontzactor fails to secure andlor pay the premiums for any of the policies of insurance ar herein. or fails to maintain such insurance, Contractor shall have the right, but not the obligation, in additii other action it may have at law or in equity, to secure such policy or policiss of insurance for the ac Subcontractor and charge Subcontractor for the premiums paid therefor. or withhold the amount the! such Sums otherwise due from Contractor to Subcontractor. Neither Contractor's right to secure such poltcies nor the securing thereof by Contractor shall constitute an undertaking by Contractor on behalf of benefit of Subcontractor or others to determine or warrant that such policles are in 0ffect 10.5 Contractor resewes the right, in its sole discretion, to require higher limits of liability cover Contractor's opinion, operations by or on behalf of Subcontractor Create higher than normal hazards require Subcontractor to name additional parties in Interest to be Additlonal Insureds. 10.8 In the event that rental of equipment is undertaken to complete andlor perform the work, Subci agrees that it shall be solely responsible for such rental equipment. Such responsibility shall include. bi limited to. theft, fire, vandalism and use by unauthorized persons. In tbe event that materials or any other type of personal property ("personal property") is acquired for thc or delivered to the Project site, Subcontractor agrees that it shall be solely responsible for such proper becomes a fixture on the Project, or otherwise is installed and incorporated as a final part of the Projec responsibility shall include, but not be limited to, theft, fire, vandallsm and use by unauthorized persons. Subcontractor shall maintain "all risk insurance. on a replacement cost basis, covering loss or dai property (for which it has title and/or rlsk of ioss) which becomes a final part of the Project. during its of situs, in transit and while Stored or worked upon away from the Project situs. Contractor shall be a insured under such insurance. SECTION 11: DEFAULT, TERMINATION, SUSPENSION AND RECOURSE 6Y CONTRACTOR 11.1 Subcontractor shall be in default of this Agreement if at any time during the progress of tt Subcontractor shall be adjudged a bankruptcy, or shall file or there is filed against it any proceeding ur Federat Bankruptcy laws, or shall make a general assignment for the benefit of creditors, or shall ( insolvent or have a receiver appointed on account of its insolvency, or shall become delinquent contributions required to be made to any employee benefit program, or if Subcontractor shall fail or rg suppty sufficient properly skilled workmen or sufficient materials of proper quality, or otherwise fail or rt prosecute diligently the work described herein, or shall fail to perform fully any of the provisions o Agreement. default to Subcontractor and its surety, if any. If Subcontractor shall fail to cure said default within forty43 hours after the giving of such notice. Contractor may, at its option and without prejudice to any right OF re may have at bw or in equity. eject Subcontractor from the Job and for purposes of completing the wc possession of Subcontractofs tools, equipment and material and/or employ any other person or per: complete the work. and the cost thereof shall be deducted from the unpaid balance of the Contract Prt amounts necessary to either obtain lien reteases fur mechanic's or other statutory liens filed against the. for Labor andlor Materials furnished at the Job or othewise remove the effect of any such lien on the . shall be included within the meaning of cost to complete the work and shall be deducted from the Contrac In the event the cost of completing the work (including additional managerial and administrative e> Upon the occurrence of any such events of default, Contractor shall give written notice CONTRACTOR'S INlTLAI-S SUBCONTRACTOR'S INITIALS- Page 0 of 11 606 TtrS-ON SSLVTEZ + S3WOH A3lSElltld os :It '. 1 lneu'rrad as the result of. Such filt), shall exceed the unpaid balance Of 9 Contract Price, such exce be 4mmediately due and payable from Subcontractor to Contractor. tq.2 Subcontractor shall be liable because of his default for all damages suffered by Contracl Contractor's exercise of the option to eject Subcontractor from the Job shall not relieve Subcontractor frc liability. Upon occurrence of any event of default, Subcontractor shall have no Fight to receive any payment whatsoever until the work has been completed and Contractor's damages, if any. hav ascertained. 11.3 In the event that Subcontractor or any of his Subcontractors causes or is involved In any laboi on the job or if they are listed by the administration office of the appropriate health and welfare. pension, 1 or apprenticeship funds as being delinquent in payment or payments to said fund or funds, they shall be to be in default under this Agreement and may be elected from the job. 11.4 In addition to the right of Contractor to terminate this Agreement pursuant to Faragraph 11.1 he! Agreement may be terminated by Contractor at any time and for any reason with ten (10) calendar da written notice to Subcontractor. On termination of this Agreement by Contractor pursuant to this pr Contractor shall pay to Subcontractor as payment in full for all tabor. work and services performed materials supplied and expenses incurred by Subcontractor under thls Agreement that portion of the C Price applicable to all work and approved extra work actually performed by Subcontractor under this Agr up to the effective date of termination for whlch Subcontractor has not previously received payment. I herein, the "effective date of termination" shall be that date which is ten (IO) calendar days after Subwn receipt of the notice of termination described in this paragraph. Subcontractor shall not undertake any nt after receipt of the notice of termination referred to in this paragraph. Unless otherwise instructed in wi Contractor. Subcontractor shall continue all work in progress untll the effective date of termination. If thc merely temporarily suspended for any reason, in whole or in part. Contractor shall notify Subcontractor ir as soan as reasonably practicable, and the above stated procedure shall apply except that this Agreemen rights and obligations shall only be suspended until Contractor notifies Subcontractor that the Job has again, that this Agreement is reinstated and that the Subcontractor is to continue Subcontractor's services 11.5 Failure of Contractor to exercise any of the rights given it under this Agreement shall not can5 waiver of that or any other right and shall not excuse the Subcontractor from compliance with the praviz this Agreement, nor prejudice any rights of the Contractor to recover damages for such default. No remedy af Contractor under this Agreement shall be to the exclusion of any other right or remedy hereundc law or at equity. all such rights and remedies being cumulative. SECTION 12: CLEAN UP 72-1 Subcontractor shall at all times keep the Job free from accumulations of waste materials or ruDbi completion of his work, Subcontractor shail promptly remove all rubbish, surplus materials. tools. scaffoidii equipment from the Job and shall leave the Job in a clean condition satisfactory to Contractor. In the evc dispute as to the responsibility for removal of rubbish from the Job, Contractor may remove the rubbi charge the cost to the various subcontractors responsible for it In such ratio a5 Contractor. in its 50k dis shall determine to be just, and this allocation shall be binding on Subcontractor. SECTION 13: ATTORNEY'S FEES 13.1 In the event that Contractor shall institute legal actlon against Subcontractor. or any surety. to e the provisions of this Agreement, or In the event that any legal action is brought against Subcontractor t: parties in Which Contractor is joined as a party, whether the same shall proceed to judgment or not, Subcor hereby agrees to pay to Contractor all reasonable costs and expenses incurred by Contractor in connectit any such action. including but not limited to, expert witness fees and reasonable attorney's fees. SECTION 14: INDEPENDENT CONTRACTOR AND TAXES q4.q Subcontractor warrants that he is an independent contractor within the purview of the Internal Rc Code, Federal Social Security Act, and all other applicable laws and regulations and is not acting in the n Contractor or as an agent of Contractor. 14.2 Unless otherwise provided herein or required by law. Subcontractor assumes exclusive liability fi shall pay before delinquency. all taxes, charges or contributions of any kind now. or hereafter imposed on, respect to, the wages, salaries or other remuneration's paid to persons employed in connection wl performance of this Agreement, and Subcontractor shall indernntfy and hold Contractor harmless from any and expense by reason of Subcontractor's failure to pay such taxes. charges or contributions. SECTION 15; BOND 15.1 Contractor may, at any time during the progress of the work by written notice. require Subcontn furnish a corporate surety bond issued by a surety or sureties acceptable to Contractor guaranteeing the performance of .this Agreement by Subcontractor and the payment for all Labor and Materials furnisi CONTRACTOR'S lNlTlnLS SUBCONTRACTOR'S iNtlU4LS- Page 9 of 11 SSLbTZZ t SSWOH A3lS3kld ElS:IT OTd Tb9 -ON e m 5. I Sub&ntractor in pursuance of ... Agreement. The bond shall be in an ount required by Contrac exceeding the Contract Price specified herein, and shall pmvlde for the payment of any sum that a claim: recover, together with costs of suit and attorneys' fees. In the event Subcontractor fails to furnish said bon Menty (20) days after receipt of written notice, Contractor may, at its option, obtain such bond Subcontractor and deduct the cost thereof ftom the monies then due or thereafter becoming Subcontractor, or may deem Subcontractor to be in default of this Agreement. SECTION 16: MISCELLANEOUS ~ 16.7 All notices permitted or required to be given as provided herein shall be in writing and may be personally an the superintendent or other duly authorized representative of either party hereto, or may be by certified mail, postage prepaid, return receipt requested, or by telegram sent to the party at the addres: hereinabove. Said notice shall be deemed received one day after deposited in the mail or one day i telegram has been sent. 16.2 Subcontractor understands and agrees that time is of the essence of this Agreement. 16.3 All additions and modifications to the Contract Documents shall be valid only if in writing and si both parties hereto and same shall then become a part of the Contract Documents and subject to the pr' of this Agreement. 16.4 The Safe Drinking Water and Toxic Enforcement Act Of 1986 (Proposition 65) prohibits ernployc knowingly discharging or releasing a chemical known to the State of Callfornia to cause cancer, birth de other reproductive harm into water or onto land where the chemical passes or probably will pass into an) of drinking water. NaMthsPanding any provision in such Act exempting Subcontractor on the basis thz less than ten (10) employees, Subcantractor hereby agrees to comply with all provisions of such Act re the discharge of hazardous chemicals of the Job-site. Subcontractor further agrees Zhat Sub- Subcontractor's employees and Subcontractor's Subcontractors shall not discharge such chemicals on 1 site, shall not engage in clean-up or repair activltles on the Job-site which will result in the discharge chemicals, and shall. upon completion of performance of all duties under this Agreement, remove all 5 materials and waste remainlng on the Job-site which, if exposed, could result in the discharge of such ch Subcontractor shall bear full financlai responsibility, as between the parties of this contract, for the compl all persons mentioned in the previous sentence, Should Subcontmctor, Subcontractor's ernplo! Subcontractor's subcontractors or their employees fall to comply with the provisions hereof within 24 hoi the time COntraCtor issues Subcontractor a Written notice of noncompliance or within the time Qf an ab period specified by any governing agency. whichever period is shorter, Contractor may give notice of d Subcontractor. Failure of Subcontractor to cure such default within 24 hours after such notice SF Contractor the option to elect an all rights or remedies set forth in this Agreement. 46.5 Subcontractor shall abide by and conform to any and all procedures and schedules establi Contractor. including those which may be necessitated by Acts of God, Subcontractor's failure to comply Agreement, or other reasons unknown at this time. -B6-6 Contractors are requlred by law to be licensed and regulated by the Contractors State Licensf Any questions concerning a contractor may be referred to this registrar of the board whose address is: CONTRACTOR'S STATE LICENSE BOARD 9835 Gaethe Road Sacramento, California 95826 MAJLlNG ADDRESS: P.O. Box 26000 Sacramento. Califarhia 95826 46.f This Agreement shall be construed and Interpreted under all shall be governed and enforced a to the laws of the State of California. 46.8 Whenever the context hereof shall so require, the singular shall include :he plural, the makc shall include the female and the neuter, and vice versa. 36.9 In the event any one or more of the provisions contained in this Agreement shall for any reason to be invalid. illegal or otherwise unenforceable in any respect, such provision shall be severed herefr such invalidity. illegality or unenforcaabllity shall not affect any 'other provision hereof and the remaindl provisions of this Agreement shall continue In full force and effect without impairment 16.10 This agreement and the covenants contained herein shall be binding upon and shall inui benefit of the parties hereto and their respective heirs and administrators, executors, permitted assi successors In interest. CONTRACTOR'S INITIALS SUBCONTRACTOR'S INirtntS- Paga 10 of 11 T- TO TP9 'ON SSLPTEZ + S3WOH A3lS3tld 0s:z'I: ~ I, iS.11 During all disputes, m ..ans, claims or other matters arising out IC , relating tQ this Agreeme breach thereof, Subcontractor shall carry on its duties hereunder and maintain the schedule for perfom the work, unless otherwise instructed in writing by Contractor or unless otherwise ordered by a court of c( jurisdiction. provided Subcontractor Is paid for performance of undisputed work in accordance with the this Agreement. 18.12 So long as Contractor is not in default under this Agreement, Subcontractor agrees that it H mechanics or other liens agalnst the project. In the event that any of Subcontractofs permitted subcoi materialmen. employees or laborers file a mechanics or other lien against the project. so long as Contrac in default under this Agreement, Subcontractor shall immediately procure and record a lien release bor by a corporation authorized to issue surety bonds in the State of California. The bond shall I requirements of California Civil Code Section 3143 or any sucC€%isor statute and shall provide for the pa any sum that the claimant may recover on the claim, together with costs of suit, If such is recuvered in tt- In the event Subcantractor fails to procure and record such bond, Contractor may. at its option and at expense of Subcontractor, procure and record such bond and deduct the cost thereof from the Contract 8 16.13 Without limiting the survival of any express provision to that effect, the terms of the Paragra "Insurance" and "indemnification" shall be continuing covenants which shall survive the teminatio Agreement IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year til written. CONTRACTOR SUBCONTRACTOR PRESLEY HOMES. a California Corporation Contractor's Lic. No. 527293 Burtech Pigelhe. Inc. By: By: Bob Montgomery Vice President of Construction Printed Name: Date: Title: 8y: State License No. Expiration Date: Date: Workers Comp. No.: Presiey Homes - Presley Homes 1537'3 Innovation Drive, Suite 380 San Diego, California 92128 (61 9) 451 -6300 Expiration Date: General Liability No.: Expiration Date: CONTRACTOR'S INITIALS SUBCONTRACTOR'S INITIALS. Page 11 of 11 ZTfl Tt79'ON SSLPTZZ t S3WOH A3lS3tld @S : 27: e 0 EXH I B IT “D” FORM OF ADDENDUM TO CONSTRUCTION CONTRACT ADDENDUM TO PRESLEY HOMES SAN DIEGO OFFSITE SUBCONTRACT AGREEMENT FOR MEAL INFRAWATER SYSTEM UNITS 2,3,4,5,6, - CONTRACT NUMBERS 402510,402704,402712 This Addendum (this “Addendum”) to Presley Homes San Diego Offsite Subcontract Agreement For M InfraWater System Units 2, 3, 4, 5, 6, - Contract Numbers 402510, 402704, 402712 this (“Addendum”) is rr November 22, 1999, by and between PRESLEY HOMES, a California Corporation (“Contractor”) and Burtech Pir (“Subcontractor”) with reference to the following recitals: 1. Recitals. 1 .I Concurrent with execution of this Addendum, Contractor and Subcontractor have entered into tl Presley Homes San Diego Offsite Subcontract Agreement For Meadowlark InfraWater System Units 2, 3, Contract Numbers 40251 0, 402704, 402712 (the “Agreement”). 1.2 Contractor and Subcontractor now mutually desire to amend the Agreement in the following pari 2. Third Party Beneficiaries. Contractor and Subcontractor extend the Agreement to include the Carlsbac Water District, a public agency organized under the Municipal Water District of 191 1 (“District”) and 1 Carlsbad (“City”) as third party beneficiaries under the Agreement, including without limitation benefick Section 8: Indemnification. 3. Additional Insureds. Subcontractor shall procure and maintain, at its sole cost and expense, an endorsemc the District and the City as additional insured(s) under the coverage specified under insurance requiremr Construction Contract consistent with the provisions of Section IO: Insurance. 4. Full Force and Effect. Except as expressly amended or modified in this Addendum, the Agreement shall re force and effect. In the event of any inconsistency between the terms and provisions of the Agreement an( and provisions of this Addendum, the terms and provisions of this Addendum shall govern. 5. Counterparts. This Addendum may be executed in one or more counterparts, all of which when taken toc constitute one original document. 6. Definitions. Unless otherwise expressly defined in this Addendum, all capitalized terms used in this Adde have the meanings subscribed to them in the Agreement. CONTRACTOR SUBCONTRACTOR PRESLEY HOMES, a California Corporation Burtech Pipeline, Inc. Contractor’s Lic. No. 527293 By: By: Bob Montgomery Vice President of Construction Printed Name: Date: Title: By: State License No. Expiration Date: Date: Workers Comp. No.: 15 P:0133982.07:46058.008 24-NOV-99 a a Presley Homes - Presley Homes 15373 Innovation Drive, Suite 380 San Diego, California 921 28 Expiration Date: General Liability No: Expiration Date: (61 9) 451 -6300 CONTRACTOR'S INITIALS SUBCONTRACTORS INITIALS P:0133982.07:46058.008 P:0133982.07:46058.008 24-NOV-99 16