DELIF
`
`5/16/2019
`
`Superior Court of California
` County of Butte
`
`MAY 17, 2019
`
`Kimberly Flener, Clerk
`
`DELIF
`
` By Deputy
`Electronically FILED
`
`BUSBY ZAPPALA& SANCHEZ LLP
`JOHN W. BUSBY, II, SBN 83381
`ERIN SHEFFIELD SANCHEZ, SBN 238450
`LAURA IC. SWANSON, SBN 290766
`251 Lafayette Circle, Suite 350
`Lafayette, CA 94549
`Telephone: (925) 299-9600
`(925) 299-9608
`Facsimile:
`Attorneys for Plaintiff
`SIERRA MOUNTAINCONSTRUCTION, INC.
`
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`SUPERIOR COURT FOR THE STATE OF CALIFORNIA
`
`IN AND FOR THE COUNTY OF BUTTE, UNLIMITEDJURISDICTION
`
`SIERRA MOUNTAINCONSTRUCTION,: Case No.: 18CV00896
`INC., a California Corporation,
`
`Plaintiff,
`
`V.
`
`SOUTH FEATHER WATER AND POWER
`AGENCY, a California public agency and
`independent special district; and DOES 1-25,
`inclusive,
`
`Defendant.
`
`STIPULATIONAND [PROPOSEDI
`ORDER GRANTINGLEAVEOF
`COURT TO PLAINTIFFTO FILE
`FIRST AMENDEDCOMPLAINT
`
`Plaintiff SIERRA MOUNTAIN CONSTRUCTION, INC, ("SMCI"), acting by and
`through its attorneys, John W. Busby II and Erin S. Sanchez of Busby Zappala & Sanchez LLP,
`and SOUTH FEATHER WATER & POWER AGENCY ("SFWPA"), acting by and through its
`attorney, M. Anthony Soares of Minasian, Meith, Soares, Sexton & Cooper, LLP, hereby
`stipulate and agree that Plaintiffmay file its First Amended Complaint (the "FAC") in the form
`
`appended hereto as Exhibit A. The stipulation between SMCI and SFWPA relates solely to
`
`leave of the Court to file the FAC.
`
`STIPULATION AND [PROPOSED] ORDER GRANTING LEAVEOF COURT TO PLAINTIFF TO FILE FIRST AMENDEDCOMPLAINT
`
`

`

`I
`
`Dated: May Q. 2019
`
`ISU '
`
`ZAPPALA ir: SANCI-IEZ LLP
`
`c/u
`
`Erin S, S<mchez
`Attol'lley 1ol'lat atllf
`SIERRA MOUNTAINCONSTRUCTION< INC.
`
`Dated: May,~ g, 2019
`
`MINASIAN.MEITII, SOARES,
`SEXTON k COOPER, LLP
`
`M. Anthony Soarcs j
`Attol'ney lol'Llclldallt
`SOU'I'l-l IIEATFIEII.0,'Al'ER AND
`POWEI< AGENCY
`
`OianVR
`
`The Court, having considered the Stipulation of the parties nnd g>ood cause appearing.
`hereby grants SMCI leave ol'Court to file its I"irst Amended Complaint attached hereto as
`
`Exhibit A.
`
`Dated:
`
`May 17, 2019
`„2019
`
`.11.IDGE OF'I-IE SKI'ERIOR COI.JRT
`
`ROBERT A. GLUSMAN
`
`12
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`'< 5
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`51 Ivul ATIDN AND 11'aol osLDI QR Dell ollANTINUI I Avl;ol< col Ilrl To PLAINTIPI< To all Ii I<lltsr AhIENI)I D cohII'I AINT
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`

`

`
`
`Exhibit A to StipulationExhibit A to StipulationExhibit A to Stipulation
`Exhibit A to Stipulation
`
`

`

`BUSBY ZAPPALA & SANCHEZ LLP
`JOHN W. BUSBY, II, SBN 83381
`ERIN SHEFFIELD SANCHEZ, SBN 238450
`LAURAK, SWANSON, SBN 290766
`251 Lafayette Circle, Suite 350
`Lafayette, CA 94549
`Telephone: (925) 299-9600
`(925) 299-9608
`Facsimile:
`
`Attorneys for Plaintiff
`SIERRA MOUNTAINCONSTRUCTION, INC.
`
`SUPERIOR COURT FOR TIIE STATE OF CALIFORNIA
`IN AND FOR THE COUNTY OF BUTTE, UNLIMITEDJURISDICTION
`
`SIERRA MOUNTAINCONSTRUCTION,: Case No.: 18CV00896
`E4C., a California Corporation,
`
`FIRST AMENDEDCOMPLAINT
`
`Plaintiff,
`
`v.
`
`SOUTH FEATHER WATER AND POWER
`AGENCY, a California public agency and
`independent special district; and DOES 1-25,
`inclusive,
`
`Defendant.
`
`Sierra Mountain Construction, Inc., alleges:
`
`GENERAL ALLEGATIONS
`INC. (hereinafter "SMCI") is a corporation
`I . SIERRA MOUNTAIN CONSTRUCTION,
`organized and existing under the laws of the State of California with its principal place of
`business in Sonora, California. At all times mentioned herein, SMCI was duly licensed by the
`California State Contractor's License Board to do the things herein alleged.
`2. Defendant SOUTH FEATHER WATER AND POWER AGENCY ("SFWPA")
`special district organized and existing under the
`California public agency and independent
`laws of the State of California.
`
`is
`
`a
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`FIRST AMENDED COMPLAINT
`PAGE I OF7
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`

`

`3. SMCI is informed and believes and thereon alleges that at all material times herein alleged,
`servants, and employees of the other
`and each of them, were the agents,
`the defendants,
`defendants, and each of them.
`and capacity of each of the defendants
`4. SMCI is unaware of the true identity, nature
`designated herein as DOE. SMCI is informed and believes and thereon alleges that each ol
`the defendants designated herein as a DOE is in some manner responsible for the damages
`
`and injuries as are alleged in this complaint. Upon learning the true identity, nature and
`capacity of the DOE defendants, SMCI will amend this complaint to allege their true names
`
`and capacities.
`
`is attached hereto
`
`9. Pursuant
`
`5. SMCI is informed and believes and thereon alleges that at all times herein mentioned, each
`and every one of the Defendants herein was the agent, servant, joint venturer, and employee
`of each other, and each was acting within the course and scope of such agency, servitude,
`joint venture and employment.
`6. On or about November 25, 2014, SMCI contracted with SFWPA for Contract No. 2014LCD
`to be performed in Butte County, California
`Lost Creek Dam Crest Modifications,
`("Project" ). The contract consisted of a form agreement,
`specifications, plans and certain
`incorporated materials. A true and correct copy of the Contract
`other
`marked Exhibit "A"and made a part hereof as ifset forth in full.
`to the contract documents, SFWPA is the licensee of the South Feather Powei
`7. Pursuant
`Project, Federal Energy Regulatory Commission (FERC) Project No. 2088.
`8. SFWPA contracted with AECOM for the construction management on the Project.
`to the Contract, SMCI furnished labor, services, equipment and/or materials tha1
`The Project was located within the
`
`intended to be used the Project.
`were used and/or
`boundaries of the County of Butte.
`10. SFWPA agreed to pay for the cost of the work.
`11. During the course of the Project, several disputes arose between SMCI and SFWPA, for
`to Specification Section
`which SMCI ultimately submitted various contract claims pursuant
`10500-1.15 and Contract General Conditions Section 10.
`12. On or about February I, 2017, SFWPA issued to SMCI a Notice of Contract Termination. A
`true and correct copy of the Notice of Termination is attached hereto as Exhibit "B."
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`FIRST AMENDED COMPLAINT
`I ACE 2 OF 7
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`in compliance with Contract General Conditions Section
`
`13. On or about September
`14, 2017,
`10(fl, Government Code Section 910 et seq. and all other applicable requirements, SMCI
`submitted a written Government Code claim to SFWPA regarding Claims 5, 7, 9-14, 16, and
`18-26. A true and correct copy of the claim, excluding exhibits,
`is attached hereto marked
`Exhibit "C" and made a part hereof as if sct forth in full. On or about October 24, 2017,
`SFWPA denied that Government Code claim. A true and conect copy of the SFWPA letter
`denying SMCI's Government Code Claim, is attached hereto marked Exhibit "D" and made
`a patt hereof as ifset forth in full.
`to SFWPA's denial of SMCI's September
`14. Subsequent
`Claim Nos. 7, 9, I I, I 8, and 24 were resolved.
`15. Of the remaining Claims, Claim Nos. 5, 10, 12-14, 16, 19-23, and 25 are claims for extra
`work performed between March and December 2015 and the delays associated therewith.
`
`14, 2017 Government Code Claim,
`
`Extra work for Claim Nos. 5, 12-14, and 25 were tracked on a tiine and materials basis and
`was verified by a representative of SF WPA. These Claims were submitted on or about March
`from SFWPA,
`6, 2017. The contractual claim review process expired without a response
`The parties attended a meet and confer conference per Contract General Conditions Section
`
`10(e) on July 18, 2017.
`16. Claim Number 26 is a claim for significant monetary damages during Season 2 of the Project
`due to the SFWPA's unwarranted and improper suspension of SMCI's work, as well as
`extensive extra work directed by the Engineer AECOM. This claim was submitted pursuant
`to Contract General Conditions Section 10 on or about March 7, 2017. The contractual claim
`review process expired on or about May 6, 2017 without a response
`from SFWPA. The
`parties attended a meet and confer conference per Contract General Conditions Section 10(e)
`
`on July 18, 2017.
`17. Regarding Claim Number 26, on or about March 29, 2016, a Suspension of Work Notice was
`issued to SMCI based on AECOM's assertion that SMCI failed to provide Quality Control.
`Specifically, AECOM indicated that they would be investigating potential deficiencies in in
`the dam facing concrete placard during the 2015 construction season to "ensure that dam face
`concrete was adequate." AECOM hired an independent
`subcontractor
`to take core samples
`from various sections of the dam facing and proceeded to break the samples to determine the
`in-situ strength of the concrete. SMCI is informed and believes that the strength of all the
`
`FIRST AMENDED COMPLAINT
`PAGE 3 OF 7
`
`

`

`samples
`
`extensive
`
`taken exceeded the strength required by the Contract documents. Following this
`testing analysis, SFWPA's Shawn Hayse
`reported to the SFWPA Board of
`
`Directors via letter indicating that the in-situ concrete met the Contract requirements.
`This
`letter, dated June 16, 2016, was included in the minutes of the Board of Directors Meeting of
`an analysis performed by AECOM that concluded in
`June 28, 2016. The letter references
`part "the concrete facing material, as placed, will perform in conformance with the design
`SFWPA, AECOM, SMCI and Third Parties all inspected the concrete and
`requirements..."
`
`apart from known areas that needed minor repair, no deficiencies were found.
`
`s
`
`18. On or about November 23, 2015, SFWPA representative Shawn Hayse sent a letter to FERC
`
`lower than lab cure
`keep in mind that
`which states
`"Please
`the site temperatures
`are
`temperatures. You should expect the cure of the site concrete to slow down due to the cooler
`site temperatures" Due to prior SFWPA-responsible
`delays during Season
`1, dam face
`concrete was poured during cooler fall and winter weather. As a result, it took longer for
`This was
`claimed
`not
`deficiency
`to reach
`strength.
`breaks
`concrete
`as
`SFWPA/AECOM. Indeed, as SFWPA identified in its report to FERC, it was expected.
`19. In March and April 2016, FERC required SFWPA to revise the contract documents and the
`QCIP (quality control and inspection program) and resubmit for FERC approval. AECOM
`responded to FERC and addressed their concerns by adding new requirements to the contract
`
`by
`
`a
`
`without issuing a change order to SMCI.
`20. On or about July 5, 2016, FERC issued a letter wherein it stated that "we have completed oui
`review of [the revised Quality Control and Inspection Program] and find that the information
`the Commission's concerns in our April 27, 2016 letter.
`
`transmitted satisfactorily addresses
`
`As such, SFWPA is authorized to resume
`
`construction work at
`
`the Lost Creek Dam
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`2B
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`from FERC,
`this authorization
`Modification project." Despite
`fact
`the
`and despite
`Specification Section 010500.1.13 do not state that work must stop or cease if corrective
`work occurs, SMCI was still not released to resume critical path work. Instead, AECOM
`scope of the
`to SMCI
`additional directives
`thereafter
`issued
`Specifications. As part of FERC-directed changes
`in the contract documents, AECOM
`
`that
`
`fell outside
`
`the
`
`required SMCI to prepare and submit the newly required quality control plans. These quality
`control plans were not required by the contract documents. SMCI's work continued to be
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`FIRST AMENDEDCOMPLAINT
`PAGE 4 OF 7
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`suspended while these extra-contractual submittals were prepared,
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`reviewed and approved by
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`AECOM.
`21. On or about March 29, 2019, in compliance with Contract General Conditions Section 10(f),
`Government Code Section 910 et seq. and all other applicable requirements, SMCI submitted
`a written Government Code claim to SFWPA regarding Claims 27 and 28. A true and
`is attached hereto marked Exhibit "E" and
`correct copy of the claim, excluding exhibits,
`made a part hereof as if set forth in full. On or about May 6, 2019, SFWPA denied that
`Goveniment Code claim. A true and correct copy of the SFWPA letter denying SMCI's
`Govennnent Code Claim, is attached hereto marked Exhibit "F" and made a part hereof as il
`set forth in full.
`22. Claim Number 27 is for extra work performed onsite from March through April of 20 I 7 for
`The Agency requested
`demobilization. This claim was
`submitted on May 22, 2017.
`
`additional
`
`information which was provided by SMCI, SMCI requested a contractual meet
`to Contract Section 10(e) on August 23, 2017. The Agency
`
`and confer conference pursuant
`failed to respond. On October 24, 2017 the Agency notified SMCI that
`inspect, copy, and audit SMCI's records pursuant
`to the Contract Specifications to assist with
`the determination of the Proposed Final Estimate. On November
`10, 2017 the Agency
`suggested and SMCI agreed to postpone the meet and confer conference following the audit
`of SMCI's cost records. On March 25, 2019, following the conclusion of the audit,
`Proposed Final Estimate was produced by the Agency. The Agency and SMCI agreed to
`
`it had elected tp
`
`the
`
`additional
`
`forgo the contractual meet and confer process and proceed to mediation.
`23. Claim Number 28 is for work performed onsite from May through November 20 I6, plus
`statutory penalties. This claim was submitted on May 12, 2017.
`The Agency requested
`information which was provided by SMCI. SMCI requested a contractual meet
`to Contract Section 10(e) on August 23, 2017. The Agency
`and confer conference pursuant
`failed to respond. On October 24, 2017 the Agency notified SMCI that
`inspect, copy, and audit SMCI's records pursuant
`to the Contract Specificatioris to assist with
`the determination of the Proposed Final Estimate. On November
`10, 2017 the Agency
`suggested and SMCI agreed to postpone the meet and confer conference following the audit
`of SMCI's cost records. On March 25, 2018, following the conclusion of the audit,
`
`it had elected to
`
`the
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`FIRST AMENDEDCOMPLAINT
`PAGE5OF7
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`Proposed Final Estimate was produced by the Agency. The Agency and SMCI agreed to
`forgo the contractual meet and confer process and proceed to mediation.
`
`24. Under the Contract and California Law, SFWPA and Does I through 25, at all relevant times
`
`have owed a duty to SMCI to furnish reasonably accurate and complete specifications, plans.,
`
`and effective supervision,
`inspection and
`to provide competent
`drawings
`and designs;
`coordination of work at the Project site; to process in a timely and proper fashion all progress
`request for clarification, information, substitution,
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`change order requests,
`
`paymen1 requests,
`
`or approval,
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`claims
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`and
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`final payment
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`requests;
`
`and otherwise
`
`to satisfy all othei
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`requirements that they owed to SMCI under the contract.
`
`25. SMCI has been damaged by SFWPA. The damages
`
`include, but are not limited to,
`
`labor,
`
`equipment, material, subcontractors, bond, delay damages
`(including standby costs, delays in
`increased costs of Contract supervision and administration,
`Contract performance,
`increased
`costs of home and field office overhead), and all other costs reasonably associated with thi»
`incident. Damages also include prompt payment penalties which accrues to unpaid retention
`
`and undisputed progress payments due. These damages are unknown at this time but are in an
`amount in excess of the jurisdictional minimum to be proven at the time of trial.
`FIRST CAUSE OF ACTION
`(Breach of Contract against SFWPA and DOES 1-25)
`I through 25 of the General Allegations of this
`26. SMCI hereby incorporates paragraphs
`Complaint as though fully set forth herein.
`27. During the course of SMCI performance of the Contract by, among other conduct:
`selectively enforcing the specifications and/or contract terms to benefit SFWPA;
`failing to issue appropriate Change Orders for extra work which SFWPA and/or
`AECOM signed offon;
`c. dealing with SMCI in bad faith with regard to the Season 2 Suspension of Work
`Notice, without reasonable promptness, arbitrarily, capriciously and by feigning
`dissatisfaction,nowhere applying an objective test of satisfaction,
`and would have been accepted;
`d. delaying approval of work to be done by SMCI, which delayed SMCI's
`performance;
`
`a,
`
`b.
`
`the dami should
`
`e.
`
`failing to provide a time extension;
`
`FIRST AMENDED COMPLAINT
`PAGE 6 OF 7
`
`

`

`t'.
`
`failing to promptly pay progress payments; and
`g. wrongl'ully withholding futtds duc SMCI.
`28. SMCI has performed all of its obligations and satisfied all conditions for which it was
`responsible under the Contract, cxccpt for those that have been excused or otherwise
`
`discharged.
`29. As a direct and proximate result of SI'WPA and DOI".S I through 25's brcach of contract,
`in excess of the jurisdictional minimum of this Court. The
`SMCI has incurred damages
`precise amount ol'SMCI's damages will be proven at trial.
`WIIEREFORE, SMCI prays judgment as sct I'orth below,
`PRAYER
`
`WIIEREI"ORE, SMCI prays for relief as hcrcinal'tcr sct forth.
`Iror compensatory damages
`
`1.
`
`including>, but arc not limited to, labor, equipment,
`material, subcontractors, bond, delay datnages
`(including standby costs, delays in Contract
`increased costs of Contract supervision and ad>ninistration,
`increased costs of
`home and field olllice overhead), and all other costs reasonably associated with this incident in an
`in excess of the jurisdictional minimum to bc proven at the time of trial;
`amount
`including prompt payment penalties which accrues to unpaid
`For damages
`retention and undisputed progress payments due; and
`For such other and I'urthcr relief as the court may deem just and proper.
`
`performance,
`
`2.
`
`3.
`
`Dated: May+ 2019
`
`BUSBY ZAPPALA dc SANCIIE/ LLP
`
`.,>.4,rlf7I LL)
`
`.I()I-IN W. BUSBY II
`ERIN S. SANCI-IEZ
`Attorneys for
`Plaintift'II':RRAMOUNTAINCONSTRUC'I'ION, INC.
`
`FIRST AMENDEI)COMPLAINT
`PAGE 7OV7
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`
`
`Exhibit AExhibit AExhibit A
`
`

`

`South Feather Water and Power Agency
`Contract No. 2014LCD
`
`AGREEMENT FOR
`Lost Creek Dam Crest Iiriodification
`
`THIS AGREEMENT is made and entered into this 25th day of November, 2014, by and
`between South Feather Water and Power Agency (SFWPA}, and Sierra Mountain Construction,
`Inc, (CONTRACTOR).
`
`WITNESSETH:
`
`SFWPA desires to retain the services of CONTRACTOR for construction of modifications
`located In Butte County, California.
`to Lost CreeK Dam,
`
`CONTRACTOR desires to perform the services
`conditions set forth below.
`
`requested by SFWPA on the terms and
`
`NOW, THEREFORE,
`
`the parties agree as follows,
`
`Dsscriotion of Work; CONTRACTOR shall perform the work described in the "Scope of
`1.
`Senrices" attached as Exhibit "A" hereto and relevant addenda.
`
`hereunder,
`and the work performed
`shall
`This Agreement,
`accordance with, ths General Conditions attached as Exhibit "B" hereto.
`
`be subject
`
`to,
`
`and in
`
`and services
`supplies,
`equipment, material,
`CONTRACTOR shall provide all
`labor,
`required or necessary to properly, competently and completely perform the work or render the
`services under this Agreement. CONTRACTOR shall determine the method, details and means
`of doing the work or rendering the services. Except as otherwise provided in this Agreement, all
`materials incorporated into the work shall be new.
`
`Bonds: Before commencement of work, CONTRACTOR shall deliver to SFWPA both a
`2.
`the faithful
`and a performance
`bond guaranteeing
`bond (labor and material),
`payment
`to the full
`performance of the contract, on the forms supplied by SFWPA in an amount equal
`contract price.
`
`The bonds shall be in the form of a bond and not a deposit in lieu of a bond,
`Each surety for the bond shall be an "admitted surety insurer," as defined in Code of
`Civil Procedure section 995.120.
`
`The bonds shall be executed in the name of the surety insurer under penalty of perjury
`or the fact of execution of the bond shall be duly acknowledged before an officer authorized to
`the option of
`and either one of the following conditions, at
`take and certify acknowledgments,
`is satisfied:
`the surety insurer,
`
`

`

`South Feather Water and Power Agency
`Contract No. 2014LCD
`(a) A copy of the transcript or record of the unrevoked appointment, power of attorney,
`bylaws, or other instrument, duly certified by the proper authority and attested by the
`seal of the insurer entitling or authorizing the person who executed the bond to do so for
`is filed in the office of the clerk of the county of Butte.
`and in behalf of the insurer,
`
`(b) A copy of a power of attorney is attached to the bonds.
`in accordance with Code of Civil Procedure section 995.640,
`The CONTRACTOR shall,
`obtain from the clerk of the county of Butte and provide to SFWPA a certificate stating that the
`Each surety
`to transact surety business,
`surety is authorized by the Insurance Commissioner
`in the current US Department of Treasury Listing of Approved Sureties
`shall be named
`(Department Circular 570).
`
`3.
`
`Comoensation: Contract price Is $ 19,626,090.00.
`
`The CONTRACTOR shall be entitled to progress payments, subject to review and
`approval of the Project Engineer. Requests for progress payments will be processed monthly,
`and will be dated and mailed on or about the 30th of each month. Payments will be due net 30
`days from the date of invoice. A five percent (5%) retention will be withheld from each invoice.
`The retention invoice willbe due 45 days after the project completion and acceptance by
`SFWPA.
`SFWPA may withhold payment of retained amounts until 30 days after the recordation of a
`in order to contirm that CONTRACTOR has fulfilled its obligations to any
`Notice of Completion,
`laborers and suppliers, Said Notice of Completion shall be recorded when
`subcontractors,
`SFWPA has inspected the work and determined that it has been completed in accordance with
`this Agreement. Acceptance of SFWPA's final payment by CONTRACTOR shall constitute a
`complete release and waiver of all claims of CONTRACTOR except disputed claims identified in
`writing by CONTRACTOR prior to final payment.
`
`in wi.iting that retained amounts be held in escrow, and
`CONTRACTOR may request
`SFWPA shall make payment of retained amounts directly to the escrow agent at the, expense of
`CONTRACTOR.
`The making of progress payments by SFWPA does not constitute acceptance or approval
`of any work prior to final completion and acceptance,
`Term and Time for C~miet'o: This Agreement shall become effective on the date first
`4,
`above written and will continue in effect until the services provided herein have been completed,
`CONTRACTOR shall complete the work within the number of working days allowed in the
`specifications.
`Liauidated Damaries: The CONTRACTOR shall complete the work in accordance with the
`5.
`accepted Term and Time for Com~leti n clause, with exception of schedule changes as agreed
`upon by SFWPA through a written Change Order. Failure to complete the full scope of work
`in a payment by the CONTRACTOR of liquidated
`within the specified working days will result
`in the amount of $950 per day for each day or portion thereof . CONTRACTOR and
`damages
`
`

`

`South Feather Water and Power Agency
`Contract No. 2014LCD
`SFWPA agree that it would be impracticable or extremely difficult tc ffx actual damages due to
`to be
`delay in the completion of the Work and that the amount stated as liquidated damages,
`is reasonable under the circumstances existing at the
`for delay,
`paid in lieu of actual damages
`time this Contract is made.
`
`6.
`
`Comoletion of Work; Pavment for Services:
`
`the work. Once it is
`Upon request by CONTRACTOR, SFWPA shall promptly inspect
`the work
`determined to be completed in accordance with the requirements of this Agreement,
`recorded, After
`be
`a Notice of Completion shall
`by SFWPA and
`accepted
`be
`shall
`CONTRACTOR has satisfactorily completed all of the work, includiog corrections to the work, it
`shall make application to SFWPA for payment. Payment of undisputed amounts shall be made
`within 40 days of recording of the Notice of Completion.
`shall be contingent upon CONTRACTOR
`Payment of undisputed Contract amounts
`furnishing SFWPA with a release of ail claims against SFWPA related to those amounts.
`Disputed Contract claims in stated amounts may be specifically excluded by CONTRACTOR
`from the operation of the release. Any claim that is not specifically excluded shall be deemed
`waived.
`Each invoice shall be accompanied by proof that CONTRACTOR has paid for all materials
`billed to SFWPA, and by CONTRACTOR's certification that all labor and services related to the
`project, to date, have been paid.
`Acceptance of the work by SFWPA, or payment to CONTRACTOR by SFWPA, does not
`in any manner relieve CONTRACTOR of its obligations under this Agreement.
`tt: Itt
`dt g~P'td tt:I
`Idgdtht
`I
`t
`d
`d
`d
`i.
`d
`SFWPA's activities will continue during the project and that SFWPA will need adequate notice
`to take equipment off-line in connection with
`from CONTRACTOR if it becomes necessary
`CONTRACTOR's work, CONTRACTOR and SFWPA agree to coordinate their schedules
`insofar as possible to minimize interference with one another. project meetings shall be held
`between CONTRACTOR and SFWPA at least twice during the project to discuss the status of
`In addition, project meetings shall be held upon request
`the project and any unresolved issues.
`least 24 hours written notice is given.
`of either SFWPA or CONTRACTOR provided that at
`inspections as needed to ensure quality
`SFWPA is authorized to observe progress and conduct
`are included in the contract
`control. The costs of project coordination and project meetings
`price.
`
`insurance: CONTRACTOR shall, at its expense, maintain in effect at all times
`General
`8.
`during the duration of this Agreement, and for any additional period as CONTRACTOR is
`than the following
`less
`repairing, or replacing defective work, not
`involved in correcting,
`coverage and limits of insurance.
`
`as will protect
`CONTRACTOR shall carry such insurance
`a} Worker's Compensation,
`SFWpA and CONTRACTOR from claims under Worker's Compensation and
`Acts; such insurance to be maintained as to the type and amount
`
`in strict
`
`Employers'iability
`
`

`

`South Feather Water and Power Agency
`Contract No. 2014LCD
`compliance with State statutes. The limit for the Employers'iability coverage shall be
`no less than $ 2 million dollars per occurrence. The workers compensation/employers
`liability policy shall be endorsed to contain a waiver of any rights of subrogations against
`SFWPA or its directors, employees, or agents.
`
`b) General Liability. CONTRACTOR shall obtain and keep in full force and effect general
`liability, completed operations,
`including provisions for contractual
`liability insurance
`This insurance shall be
`injury, bodily injury and property damage coveragss.
`personal
`on an occurrence basis form with a standard cross-liability clause or endorsement. The
`limit for this insurance shall be no less than $2 million per occurrence combined single
`limit for bodily injury and property damage. CONTRACTOR's insurance secured under
`this subparagraph shall name, by endorsement, SFWPA as an additional insured.
`c) Automobile Liability. CONTRACTOR shall maintain automobile liability insurance with
`This
`leased rented or borrowed.
`coverage for any vehicle including those owned,
`The limit amount
`insurance shall have a standard cross-liability clause or endorsement.
`for this insurance shall be no less than $2 million per occurrence combined single limit
`for bodily injury and property damage. CONTRACTOR's insurance secured under this
`subparagraph shall name, by endorsement, SFWPA as an additional insured.
`
`a. The CONTRACTOR's insurance coverage shall be primary insurance as respects
`and agents, Any insurance or self-insurance
`its directors, employees,
`SFWPA,
`shall be excess of
`its directors, employees, or agents
`maintained by the SFWPA,
`the CONTRACTOR's insurance and shall not contribute with it.
`
`b. Any deductibles or self-insured retentions must be declared to and approved by
`the SFWPA. At the option of SFWPA, the insurer shall reduce or eliminate such
`deductibles or self-insured retentions.
`
`c. The required insurance is to be placed with insurers admitted to transact business
`in California with an A.M. Best rating of no less than A:VII.
`
`Promptly upon execution of this Agreement and
`d) Endorsements/Certificate of Insurance.
`of any work, CONTRACTOR shall provide SFWPA with
`prior to commencement
`referred tc above evidencing that all
`and the endorsements
`certificates of insurance
`required by this Agreement have been obtained and are
`insurance and/or endorsements
`by SFWPA shall not relieve or
`in full force and effect. Approval of the insurance
`decrease any liability of CONTRACTOR. The certificates and policies shall provide that
`reduction in coverage or
`thirty (30) days written notice of any material change,
`in the
`In addition,
`cancellation of the insurance policies will be provided tc SFWPA.
`carrier, policies or nature of coverage
`is made in the insurance
`event any change
`required under this Agreement, CONTRACTOR shall notify SFWPA prior to making such
`changes.
`
`9.
`
`Indemnification and Hold Harm~les.
`SFWPA shall make timely notification to CONTRACTOR of the receipt of any third-party
`
`

`

`South Feather Water and Power Agency
`Contract No. 2014LCD
`
`claim relating to this Contract.
`
`from sll claims,
`indemnify and hold SFWPA harmless
`The CONTRACTOR shall
`liability, loss, and costs (including but not limited to all fees and charges of engineers,
`demands,
`architects, attorneys and other professionals and all court or other dispute resolutions costs),
`claims arising from or encountered in connection with this Contract, or the prosecution of the
`Work, excepting only such injury or harm caused by the SFWPA's sole or active negligence or
`to the extent caused thereby. CONTRACTOR's indemnity obligation shall
`willful misconduct,
`extend tc Claims occurring after completion of the Work, as well as during the Work's
`Such indemnity shall also extend to Claims by the employees of CONTRACTOR or
`progress.
`its subcontractors.
`
`CONTRACTOR's obligation to indemnity and its obligation tc maintain liability and other
`insurance are separate and distinct. CONTRACTOR's obligation to indemnify is not restricted to
`or
`officers, employees,
`by SFWPA, or
`its directors,
`if any,
`received
`proceeds,
`insurance
`authorized representatives.
`Neither termination of the Agreement nor completion of the acts to be performed under
`this Agreement shall release CONTRACTOR from its obligations to indemnify as to any Claims
`so long as the event upon which such Claim is predicated shall have occurred prior to the
`effective date of any such termination or completion and arose out of or was in any way
`its
`by CONTRACTOR,
`this Agreement
`under
`or operations
`connected with performance
`agents or consultants, or the employee, agent or CONTRACTOR of any one of
`employees,
`them.
`
`this Agreement will
`all work performed under
`CONTRACTOR warrants
`10. Warranties.
`conform to the Contract Documents and will be free from defects in materials and workmanship
`In addition, all
`for a period of one (1) year from the date of acceptance.
`shall inure to SFWPA. This section does not in any manner proscribe the statutory
`periods for commencement of legal actions for CONTRACTOR's breach of this Agreement or its
`negligent performance of the work that is the subject of this Agreement.
`11. ~II::T|iiAg
`fth prl
`tiitt
`d
`t
`t
`t
`h
`th
`ti
`g
`and assigns. However, CONTRACTOR will not assign this
`shall be binding on their successors
`Agreement without the written consent of SFWPA. No modification of this Agreement shall be
`binding unless in writing signed by both parties. A waiver of any term, or any breach, of this
`If any provision of this
`Agreement shall not be deemed a waiver of any other term or breach.
`and not affected
`the remainder
`shall be severable
`is held to be unenforceable,
`Agreement
`theieby. Time is of the essence of this Agreement.
`
`manufacturers'arranties
`
`the giving of notices, such
`requires or contemplates
`Insofar as this Agreement
`12. Notices;
`notices shall be deemed given when personally delivered in writing or facsimile transmission, or
`deposited in the United States mail, postage prepaid, as follows:
`
`

`

`To SFWPA:
`
`South Feather Water and Power Agency
`Contract No. 2014ECD
`
`Michael C. Glaze, General Manager
`South Feather Water and Power Agency
`2310 Oro Quincy Highway
`Oroville, CA95986
`FAX: 916-533-9700
`
`To CONTRACTOR:
`Oouglas Benton, President
`Sierra Mountain Construction,
`16355 Yosemite Road
`Sonora, CA 95370
`
`Inc.
`
`13. Governino Law: Venue: This Agreement shall be governed by the law of California, Any
`acti