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San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Friday Nov 09, 2001 3:29 pm
Case Number: CGC-01-401167
Filing Date: Nov 09, 2001 3:30 pm
Juke Box: 001 Image: 00298062
GENERIC CIVIL FILING (NO FEE)
STRATEGIC RESOURCE SOLUTIONS CORP. VS. SAN FRANCISCO
UINFIED SCHOOL DISTRICT et al
001000298062
Instructions:
Please place this sheet on top of the document to be scanned.oO ona
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PILLSBURY WINTHROP LLP
MARK N. WHITE 88335
JEFFREY S. ROSS 67345
CHRISTOPHER RODRIGUEZ 212274
WILLIAM J. DORGAN 212391
50 Fremont Street
San Francisco, CA 94105-2230
Telephone: (415) 983-1000
Facsimile: (415) 983-1200
Attorneys for Plaintiff
STRATEGIC RESOURCE SOLUTIONS CORP.
2
Moy 7 “tay
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bp, y
Noy 9 2001
eats, Clerk
CITY AND COUNTY OF SAN FRANCISCO
STRATEGIC RESOURCE
SOLUTIONS CORP., a North
Carolina corporation,
Plaintiff,
vs.
SAN FRANCISCO UNIFIED
SCHOOL DISTRICT; CRITICAL
SOLUTIONS, INC., a California
corporation, ABN AMRO
INCORPORATED, a New York
corporation; and DOES 1-100,
inclusive,
Defendants.
ee eee
Pol
10564183v1
-1-
vo. GO] 4S 7
EXHIBITS TO
COMPLAINT FOR (1) BREACH
OF CONTRACT, (2) BREACH
OF THE COVENANT OF GOOD
FAITH AND FAIR DEALING, (3
INTENTIONAL INTERFERENCE
WITH CONTRACT, (4)
NEGLIGENCE, (5
DECLARATORY RELIEF, (6)
CONSTRUCTIVE TRUST, (7)
EQUITABLE LIEN, (8) ORDER
FOR DEPOSIT (CODE CIV.
PROC. § 572), AND (9
INJUNCTIVE RELIEF
Amount demanded exceeds
$10,000
2 3
EXHIBITS TO COMPLAINTExot’SAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
DOCUMENT 00520
AGREEMENT FORM
CONTRACT No. LOT
Resotutionno,__94 -\3 BF
THIS ENERGY SERVICES AGREEMENT is made this : day of A.D. 1999 by
and between STRATEGIC RESOURCE SOLUTIONS (hereinafter called “ESCO") and the SAN
FRANCISCO UNIFIED SCHOOL DISTRICT (“hereinafter called District”), acting through its Executive
Director of Facilities (hereinafter called "Director*) under and by virtue of the authority granted to him as ~N
such by the District's Board of Eductation.
Satisfaction of the Director, to prosecute the Work with diligence from day to day to Final Completion, to
furnish all the materials to be used in the execution and completion of the Work in accordance with the
Contract Documents, and to otherwise fulfill all of ESCO’s obligations under the Contract Documents to
the satisfaction of the Director.
Article 1 - WORK.
The Work shall be Provided according to the Contract Documents which are incorporated into this
Agreement and made a part hereof by this reference, and alt materials used in Providing the Work shall
comply with the District's Requirements. The Contract Documents, which comprise the entire
agreement between ESCO and the District concerning the Provision of the Work, are defined in the
General Conditions (Document 00700). Any undefined term used in this Agreement shall be given the
definition set forth in the General Conditions (Document 00700).
Article 2 - CONTRACT TIMES,
All Work related to Boilers must be Substantially Complete no later than the close of business on
October 15, 2000; and all other Work must be Substantially Complete no later than the close of
business on August 15, 2000. Final Completion for each of the two aforementioned scopes of Work
shall occur no later than 60 consecutive calendar days after the Notice of Substantial Completion is
issued by the District.
Article 3 - LIQUIDATED DAMAGES.
It is understood and agreed by and between ESCO and the District that time is of the essence in all
matters relating to the Contract Documents and that the District will suffer financial loss if the Work is
not completed within the above stated Contract Times, plus any extensions thereof allowed in
accordance with Article 8 of the General Conditions (Document 00700). Accordingly, ESCO and the
District agree that as liquidated damages for delay (but not as a penalty), ESCO shall pay the District
the the amounts set forth in Contract Time and Liquidated Damages (Document 00802) for each
calendar day that expirés after the Contract Times set forth above in Article 2. District and ESCO
understand and agree that the actual costs to District which would result from ESCO's failure to
complete the Work within the Contract Time is extremely difficult, if not impossible, to determine.
Article 4 - LABOR REQUIREMENTS.
4.01 Wages and compensation to be paid for labor performed or services rendered under this
Agreement shall be in accordance with the Contract Documents.
4.12.99 00520 - 1 AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
4.02 The latest Wage Rates for Private Employment on Public Contracts in the District and County of
San Francisco, as determined by the Director of the California Department of Industrial
Relations, as the same may be changed during the term of this Agreement, shall be included in
this Agreement and are hereby incorporated by this reference. ESCO agrees that any person
performing labor in the Provision of the Work shall be paid not less than the prevailing rate of
wages as so determined. ESCO shall include, in any contract or subcontract relating to the
Work, a requirement that all persons performing labor under such contract or subcontract shall
be paid not less than the prevailing rate of wages for the labor so performed. ESCO shall
provide to the District for Work performed by its employees, and shall require any contractor or
subcontractor performing Work on the Project to provide, and shall deliver to District every
month during any construction period, certified payroll reports with respect to all persons
performing labor in the Provision of the Work, excepting performance of professional services.
4.03 ESCO shall pay to the District twenty-five dollars ($25.00) for each laborer, workman, or
mechanic employed by ESCO in the Provision of the Work for each calendar day during which
such laborer, workman, or mechanic is required or permitted to labor more than eight hours in
any one calendar day or 40 hours in any one calendar week in violation of the provisions of
sections 1810 to 1815, inclusive, of the State Labor Code.
Article 5— RESOLUTION OF CONFLICT.
5.01 It is expressly agreed by and between ESCO and the District that should there be any conflict
between the terms of this Agreement and the Proposal of ESCO, then this Agreement shall
control and nothing herein shall be considered as an acceptance of any terms of the Proposal
which conflict with this Agreement.
Article 6 - PROJECT COST.
ESCO and District agree that the Project Cost shall be twenty-one million, two hundred and eighty nine
thousand, nine hundred and nine dollars ($21,289,909.00). The Project Cost may be adjusted upward
or downward from time to time in accordance with the Contract Documents.
Article 7 - INDEMNITY.
To the fullest extent permitted by law, and consistent with California Civil Code section 2782, ESCO
shall assume the defense of, indemnify and hold harmless the District, its boards and commissions,
attorneys and other parties designated in Paragraph 1.4 of Insurance Requirements (Document 00805),
and all of their officers, agents, members, employees, authorized representatives, or any other persons
deemed necessary by any of them acting within the scope of the duties entrusted to them, from all
claims, suits, damages, actions, losses and liabilities of every kind, nature and description, including but
not limited to attorney's fees, directly or indirectly arising out of, connected with or resulting from the
performance or nonperformance of the Work. The liability of ESCO shall not be limited to the amount of
insurance coverages required under the Contract Documents. This indemnification shall not be valid in
_the instance where the loss is caused by the solé negligence or intentional tort of any person
indemnified herein. This obligation does not limit other obligations for ESCO to indemnify the District as
set forth elsewhere in the Contract Documents.
Article 8- RELEASE. *
ESCO, as a material part of the consideration of this Agreement, hereby waives and releases any and
all claims against District from any losses, including damages to goods, goodwill, merchandise,
equipment or business opportunities, for any cause or any claim relating to the Project or procurement
process District utilized in selecting ESCO, existing at the time this Agreement is executed or relating to
412.99 00520-2 AGREEMENTSe
SAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
District's execution and delivery of this Agreement; provided however, the above shall not alter the
District's obligations under the Agreement or ESCO's ability to make Claims or otherwise enforce the
Agreement in accordance with its terms.
Article 9- TERMINATION.
This Agreement and the other Contract Documents shall, uniess sooner terminated, terminate upon
Final Completion of the Work or as set forth in Article 14 of the General Conditions (Document 00700).
IN WITNESS WHEREOF, ESCO and the District have hereunto set their hands and seals, and have
executed this Agreement in duplicate, the day and year first above written.
By my signature hereunder, as ESCO, | certify that | am
aware of the provisions of section 3700 of the Labor Code
which require every employer to be insured against liability
for workmen's compensation or to undertake self-
insurance in accordance with the provisions of that code,
and ! will comply with such provisions before commencing
the performance of the Work of this Contract.
STRATEGIC RESOURCE SOLUTIONS CORP.
ELA BS Waban d
Robert D. Morehead
President and Chief Operating Officer
SAN FRANCISCO UNIFIED SCHOOL DISTRICT
Lucian Blazej D
Executive Director of Facilities
Approved as to form:
LOUISE H. RENNE
District Attorney
Deputy District Attorney \
END OF DOCUMENT
4.12.99 00520 - 3 AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT
ENERGY SERVICE AGREEMENT
DOCUMENT 00610
PERFORMANCE BOND & PAYMENT (LABOR AND MATERIAL) BOND
RESOLUTION No._744- 1384
KNOW ALL MEN BY THESE PRESENTS, that WHEREAS, the San Francisco Unified School District, has
awarded to STRATEGIC RESOURCE SOLUTIONS CORP., hereinafter designated as the “Principal,” the following
contract:
ENERGY SERVICES AGREEMENT
CONTRACT No, 80100,
WHEREAS, said Principal is required under the terms of said Agreement to furnish a Bond for the faithful
performance of the Work under the terms of the Agreement and the Contract Documents; and to fumish a separate
Bond for the payment of any materials, provisions, or other supplies, used in, upon, for or about the performance of the
work contracted to be done;
NOW, THEREFORE, we the Principal and
as Surety, are firmly bound unto the San Francisco Unified School District in the penal sum of
PERFORMANCE BOND
$21,289,909.00
PAYMENT BOND
$21,289,909.00
lawful money of the United States for the payment of which sum well and truly to be made, we bind ourselves, our
heirs, executors, administrators, successors and assigns, jointly and severally firmly by these presents for a
performance bond and an equal and separate penal sum for a separate Payment bond. The conditions of this
obligation are such that if the said principal does well and faithfully performs all the conditions and covenants of said
Contract Documents, according to the true intent and meaning thereof, upon its part to be kept and performed, then
the above obligation is to be null and void, otherwise to remain in full force and effect.
(PERFORMANCE BOND)
THE CONDITION OF THIS OBLIGATION IS SUCH, that
if the above bounden Principal, its heirs, executors, administrators,
‘successors or assigns, shall in all things stand to and abide by, and
well and truly keep and perform the covenants, conditions and
agreements in the said Contract Documents, including warantees
and guarantees and the provisions for liquidated damages in the
‘said Contract Documents, any changes, additions or alterations
thereof made as therein provided, on its part, to be kept and
performed at the time and in the manner therein specified, and in all
respects according to their true intent and meaning, and shall
indemnify and save harmless the District, its officers and agents, as
+ therein stipulated, then this obligation shall become null and void;
otherwise it shall be and remain in full force and effect.
(PAYMENT BOND)
THE CONDITION OF THIS OBLIGATION IS SUCH, that
if said principal, its heirs, executors, administrators, successors or
assigns, of his or its subcontractor or subcontractors, shall fail to
pay for any materials, provisions, or other supplies, used in, upon,
for or about the performance of the work contracted to be done, or
for any work or labor thereon of any kind, or for amounts due the
Unemployment Insurance Act with respect to such work or labor,
then the surety of this Bond will pay for same, in an amount not
exceeding the sum specified in this Bond, and in case suit is
brought upon this Bond will also pay a reasonable attomey’s fee, to
be fixed by the Court.
This Bond shall inure to the benefit of any and all persons,
companies, corporations, political subdivisions and state agencies,
entitled to file claims under the provisions of Califomia Civil Code
section 3247 et seqitur.
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Agreement or the Contract Documents or to the work to be performed
thereunder and no inadvertent overpayment of progress payments shall in any way affect its obligations on these
4.12.99
00610 -1
PERFORMANCE BOND & PAYMENT BONDSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
Bonds, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms
of the Agreement or the Contract Documents or of any inadvertent overpayment of progress payments.
IN WITNESS WHEREOF, the above-bounden Parties have executed this instrument under their seal this
day of. , 19___, the name and corporate seal of each corporate party being hereto affixed and
these presents duly signed by its undersigned representative, pursuant to authority of its governing body.
Approved as to form:
LOUISE H. RENNE
District Attorney Principal
By:
By:
Deputy District Attorney
Surety
By:
END OF DOCUMENT
4.12.99 00610-2 PERFORMANCE BOND & PAYMENT BONDSAN FRANCISCO UNIFIED SCHOOL DISTRICT
ENERGY SERVICE AGREEMENT
DOCUMENT 00700
GENERAL CONDITIONS
TABLE OF CONTENTS
Article or Paragraoh Number & Title Page
ARTICLE 1 - GENERAL
4.01 Contract Documents Defined 00700 - 4
1.02 Contract Documents 00700 - 4
1.03 Basic Definition of Terms Used in the Contract Documents 00700 -5
1.04 Meaning and Intent of Contract Documents 00700 - 11
1.05 Interpretations of Contract Documents 00700 - 12
1.06 Modification of Contract Documents 00700 - 12
1.07 Precedence of Documents 00700 - 12
ARTICLE 2 - DISTRICT'S RESPONSIBILITIES AND RIGHTS
2.01 Assist in Obtaining Approvals 00700 - 13
2.02 Right to Stop the Work 00700 - 13
2.03 Right to Carry Out the Work 00700 - 14
2.04 No Waiver of Rights 00700 - 14
2.05 Oversight of the Contract 00700 - 14
2.06 Amounts Owed to the District 00700 - 15
ARTICLE 3 - ESCO'S RESPONSIBILITIES
3.01 Design Responsibilities 00700 - 15
3.02 Supervision of the Work 00700 - 16
3.03 Labor, Materials and Equipment 00700 - 17
3.04 Warranty 00700 - 18
3.05 Taxes 00700 - 19
3.06 Permits, Fees and Notices 00700 - 19
3.07 Superintendents 00700 - 21
3.08 Progress and Submittal Schedules 00700 - 21
3.09 Substitutions 00700 - 22
3.10 Record Documents 00700 - 22
3.11 Shop Drawings, Product Data and Samples 00700 - 22
3.12 Use of Site 00700 - 23
3.13, Cleaning Up and Removal of Debris 00700 - 24
3.14 Access to Work 00700 - 24
3.15 Royalties and Patents 00700 - 25
3.16 Indemnification 00700 - 25
3.17 ESCO's Daily Report 00700 - 26
3.18 Computerized Job Cost Reporting System 00700 - 26
3.19 Project Financing 00700 - 27
4.12.99 00700 - 1
General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT
ENERGY SERVICE AGREEMENT
Article or Paragraph Number & Title Page
ARTICLE 4 - CLARIFICATIONS AND CLAIMS
4.04 Clarifications 00700 - 27
4.02 Claims 00700 - 27
ARTICLE 5 - SUBCONTRACTORS AND SUBCONSULTANTS
5.01 Subcontracts and Other Contracts for Portions of the Work 00700 - 29
5.02 Subcontractual Relations 00700 - 29
§.03 Assignability of Subcontracts 00700 - 30
5.04 Successors and Assigns 00700 - 30
ARTICLE 6 - CONSTRUCTION BY THE DISTRICT OR BY SEPARATE CONTRACTORS
6.01 District's Right to Perform Construction and to Award Separate Contracts 00700 - 31
6.02 Coordination
6.03 Clean Up Responsibilities
ARTICLE 7 - CHANGES IN THE WORK
7.01 Additions, Deletions and Revisions
7.02 Change Orders
7.03 Unilateral Change Orders
7.04 Cost of the Work
7.05 Force Account Work
7.06 Audit
ARTICLE 8 - TIME
8.01 Progress and Completion
8.02 Delays and Extensions of Time
8.03 Notice of Labor Disputes
00700 - 32
00700 - 33
00700 - 33
00700 - 34
00700 - 35
00700 - 35
00700 - 39
00700 - 40
00700 - 41
00700 - 42
00700 - 46
ARTICLE 9 ~ PAYMENTS, COMPLETION AND LIQUIDATED DAMAGES
9.01 Project Cost
9.02 Schedule of Values
9.03 Progress Payments
9.04 Payment Authorization
9.05 Decisions To Withhold Payment
9.06 Project Completion and Final Payment
9.07 Partial Utilization
9.08 Substantial Completion
9.09 Final Completion
9.10 Liquidated Damages
4.12.99 00700 - 2
00700 - 46
00700 - 46
00700 - 47
00700 - 49
00700 - 49
00700 - SO
00700 - 51
00700 - 52
00700 - 52
00700 - 53
General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT
Article or Paragraph Number & Title
ARTICLE 10 - SAFETY
10.04
10.02
10.03
10.04
Precautions and Programs
Persons and Property
Safety Permits
Emergencies
ARTICLE 11 - INSURANCE AND BONDS
11.01
11.02
insurance Requirements
Performance Bond and Payment Bond
ARTICLE 12 - INSPECTION AND CORRECTION OF WORK
12.01
12.02
12.03
12.04
12.05
Uncovering of Work
Tests and Inspections
Correction of Non-Conforming Work
Correction Period
Acceptance of Non-Conforming Work
ARTICLE 13 - MISCELLANEOUS PROVISIONS
13.01
13.02
13.03
13.04
13.05
13.06
13.07
13.08
13.09
13.10
13.11
Governing Law
Written Notice
Rights and Remedies
Equal Opportunity
Apprentices
Wages and Payrolls
Partnering
Limitation on District's Liability
Conflict of interest
Supervision by the Office of Regulation Services
Criminal Background Checks
ENERGY SERVICE AGREEMENT
Page
00700 - 53
00700 - 54
00700 - 55
00700 - 56
00700 - 56
00700 - 56
00700 - 56
00700 - 57
00700 - 58
00700 - 58
00700 - 59
00700 - 60
00700 - 60
00700 - 60
00700 - 60
00700 - 61
00700 - 61
00700 - 63
00700 - 64
00700 - 64
00700 - 64
00700 - 65
ARTICLE 14 - TERMINATION OF CONTRACT OR WITHDRAWAL FROM THE PROJECT
14.04
14.02
14.03
4.12.99
Termination by the District for Cause
Suspension by the District for Convenience
Termination by the District for Convenience
END OF TABLE OF CONTENTS
00700 -3
00700 - 65
00700 - 65
00700 - 65
General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT
GENERAL CONDITIONS
ARTICLE 4 - GENERAL
1.01 CONTRACT DOCUMENTS DEFINED
A.
The Contract Documents consists of the following and any subsequently executed
modifications thereto:
1.
the executed Energy Services Agreement (Document 00520) and any properly
executed written modifications thereto;
the Design Requirements, which supplement the Energy Services Agreement
(Document 00801);
the Special Conditions (Document 00823);
Performance Bond and Payment Bond (Document 00610);
these General Conditions (Document 00700);
the Supplementary Conditions (Documents 00801, 00802, 00805, 00810, 00811,
00814, 00815, 00820 and 00822);
the Construction Documents, which will be prepared by ESCO and Accepted by
the District.
The Contracting Requirements (Documents 00520 through 00822) establish the rights
and responsibilities of the Parties with respect to the design and construction of the
Project and include these General Conditions and the Supplementary Conditions
(Document 00800 through 00822).
1.
The General Requirements are defined at Paragraph 1.03.
1.02 CONTRACT DOCUMENTS
A.
4.12.99
The Contract Documents sets forth all of the terms and conditions relative to ESCO’s
design and construction of the Project.
ESCO's signing of the Agreement signifies its acceptance of the Contract Time and
Project Cost as being sufficient for completion of the Work, including both design and
construction activities, as well as acceptance of the other terms and conditions of the
Contract Documents.
00700 - 4 General Conditions
ENERGY SERVICE AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
1.03 BASIC DEFINITION OF TERMS USED IN THE CONTRACT DOCUMENTS
A. Wherever a word or phrase defined below, or a pronoun used in place thereof, is used
in the Contract Documents, it shall have the meaning herein set forth. The colon ("")
is employed in this Paragraph as a symbol for "shall mean". A colon also may be
employed to set off a paragraph title or heading from the text that follows or as a
punctuation mark in a sentence to direct attention to matter that follows.
1. Accepted, Approved: Accepted or approved, or Satisfactory for the Work, as
determined in writing by the District, unless otherwise specified. Where used in
Conjunction with the District's response to submittals, requests, applications,
inquiries, proposals and reports by ESCO, the term “approved” shall be held to
limitations of the District's responsibilities and duties as specified in these General
Conditions. In no case shall the District's approval be interpreted as a release or
waiver of ESCO from its responsibilities or obligations under the Contract
Documents.
2. Agreement: The Agreement (Document 00520) to be entered into by and
between the District and ESCO relating to the design and construction of the
Project.
3. Approved Equal: Approved in writing by the District as being of equivalent
quality, utility and appearance. Equivalent means equality in the opinion of the
District Representative. The burden of proof of equality is the responsibility of
ESCO. Refer to the General Requirements for procedures for proposing
substitutions.
4. Architect: A person or entity that is a member of ESCO team who is lawfully
entitled to practice architecture or engineering in the State of California who will
provide design services for the Project.
5. Article: An article of the Contract Documents. Refer to the Table of Contents -
General Conditions for a listing of Article numbers and titles of these General
Conditions.
6. Bonds: Proposal, performance and payment (labor and materials) bonds and
other instruments of security acceptable to the District. Refer to Document 00410
and Document 00610.
7. By Others: Work on this Project that is outside the scope of Work to be
performed by ESCO under the Agreement, but that will be performed by the
District, other parties, or other means and at other expense.
8. Change Order: A written instrument prepared by the District issued after the
effective date of the Agreement and executed in writing by the District and ESCO,
Stating their agreement upon all of the following (i) a District requested change in
the Work; (ii) the amount of the adjustment in the Project Cost, if any, and (iii) the
extent of the adjustment in the Contract Time, if any.
9. Claim: A written demand by ESCO for an adjustment in the Project Cost or
Contract Time, or both, which is submitted in accordance with the requirements of
the Contract Documents.
4.12.99 00700 -5 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
10. Clarification: A document consisting of supplementary details, instructions or
information issued by the District that clarifies or supplements the District's
requirements for Work under of the Contract Documents. Clarifications do not
constitute a change in the Work, Project Cost or an extension of Contract Time.
11. Code: Code or codes in force under the Contract Documents or reasonably
anticipated by design professionals in accordance with the standard of care for
their discipline. Wherever reference is made to Code, that reference shall be
construed to mean the codes, Laws or orders applicable to the item of Work or
the Project.
12. Construction Documents: The Drawings and Specifications prepared by ESCO
and approved by the District, which are more fully described in the Design
Requirements (Document 00801).
13. Contract Documents: As defined in Paragraphs 1.04 and 1.04.
14. Contract Time: The number of successive days as stated in Document 00802 to:
(i) achieve Substantial Completion and (ii) achieve Final Completion.
15. Contracting Requirements: As defined in subparagraph 1.018.
16. Day: Reference to “day” shall be construed to mean a calendar day of 24 hours,
unless otherwise specified.
17. Delivery: In reference to an item specified or indicated shall mean to transport to
the Facilities and unload and store with proper protection.
18. Design Requirements: The design-related work and construction support
services required to be provided by ESCO as set forth in Document 00801 and
required to be performed by properly licensed design professionals.
19. Designated, Determined, Directed: Required of ESCO by the District, unless
otherwise specified.
20. District: The San Francisco Unified Schoo! District, identified as such in the
Agreement and referred to throughout the Contract Documents as if singular in
number,
21. District Representative or Project Manager (PM): The District's authorized on-
Site representative. identified by the District in writing, who will act as the District's
representative with respect to ESCO’s performance of the Work. Such person
shall have complete authority to transmit instructions, receive information,
interpret and define the District’s policies, make decisions with respect to the
performance of the Work, and provide such other services as may be designated
by the District. All communication between the District and ESCO shall’be
directed through the District Representative.
22. ESCO: The energy services contractor selected by the District to design and
build the Project and with whom the District has executed and delivered the
Agreement following approval by the District's Governing Board. ESCO is
referred to throughout the Contract Documents as if singular in number and
neuter in gender. The term "ESCO" means ESCO and its authorized
4.12.99 00700 -6 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
representatives and agents, employees, successors and assigns, and any
persons or entities who work by, through, or for any of them.
23. Director: The Executive Director of the Department of Facilities Management of
the San Francisco Unified School District, State of California, the contracting
officer for the Agreement, acting directly or through properly authorized
representatives, agents, and consultants, limited by the particular duties entrusted
to them.
24. District Requirements: Materials and equipment shall be new, first-class for the
type, well suited for the intended purpose and subject to District approval.
25. Document: Refer to Document 00010 for a listing of the Documents.
26. Drawings: The graphic and pictorial portions of the Construction Documents to
be prepared by ESCO and approved by the District and the Office of the State
Architect showing the design, location and dimensions of the Work, generally
including plans, elevations, sections, details, schedules, addenda, permit
drawings and diagrams.
27. Effective Date of the Agreement: The date indicated in the Agreement on which it
was executed,
28. Facilities: The school Sites where the Work Is to be performed.
29. Field Order: A written order issued by the District which requires minor changes
in the Work but which does not involve a change in the Project Cost or the
Contract Time.
30. Final Completion: The date of written acceptance of the Project by the District
when the Agreement has been fully performed, including all punch list items, and
when all contractual and administrative requirements have been fulfilled.
31. Force Account Work: Change Order Work resulting in a change in the Project
Cost on the basis of direct costs plus markup on direct costs for overhead and
profit as provided in Paragraph 7.05.
32. Furnish: Purchase and deliver to the Facilities ready for installation, including
proper storage; no installation is included. The term "Furnish" also means to
Supply and Deliver to the Facilities.
33. General Requirements: The District's criteria for administrative requirements and
procedural requirements. Administrative and procedural requirements are those
relating to the process of contract administration, the assignment of contractual
responsibilities and the methods of communicating, verifying and coordinating
requirements for quality assurance.
34. Indemnify: A contractual obligation by which one person or entity agrees to
reimburse others for loss or damage arising from specified liabilities.
35. Indicated: Shown or noted on the Drawings or written in the Specifications.
4.12.99 00700 -7 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT , ENERGY SERVICE AGREEMENT
36. Install: Apply, connect or erect items for incorporation into the Project; Furnishing
or Supplying is not included. The term "Install" aiso describes operations at the
Facilities, including unpacking, assembly, erection, placing, anchoring, applying,
working to dimension, finishing, curing, protecting, cleaning, and similar
operations.
37. Installer: A person engaged by ESCO, its Subcontractor or Lower-Tier
Subcontractor for performance of a particular element of construction at the
Facilities, including installation, erection, application and similar required
operations. It is a requirement that installers be expert in the operations they are
engaged to perform.
38. Item: A separate, distinct portion of the whole Work, which may comprise
material, equipment, article, or process.
39. Law or Laws: Any one or more of all applicable laws, ordinances, rules,
regulations, permits, authorizations, orders and requirements, including, without
limitation, all consents or approvals required to be obtained from, and all rules
and regulations of, and all building and zoning laws of, all federal, state, county
and municipal governments, the departments, bureaus, agencies or commissions
thereof, authorities, board of officers, any national or local board of fire
undemriters, or any other body or bodies exercising similar functions, having or
acquiring jurisdiction of, or which may affect or be applicable to the Facilities or
any part thereof, including, without limitation, any subsurface area, use thereof
and the buildings and Improvements thereon.
40. Lower-Tier Subcontractor or Supplier: A person or entity who has a direct
contract with a Subcontractor or Supplier, or with another Lower-Tier
Subcontractor or Supptier, to perform a portion of the Work at the Facilities or to
furnish materials or equipment to be incorporated in the Work by ESCO,
Subcontractor or Lower-Tier Subcontractor, as applicable.
41. Modification: One or more Change Orders processed as a group.
42. Non-conforming Work: Work that is unsatisfactory, faulty, defective, or deficient;
Work that does not meet the requirements of inspection, reference standards,
tests, or approval referred to in the Contract Documents; or Work that has been
damaged prior to the District's filing of the Notice of Final Completion.
43. Notice of Delay: Refer to Paragraph 8.02.
44. Notice of Final Completion: The document approved in writing by the District and
filed by ESCO, with the Recorder's Office, after the Work has been fully
performed, including all punch list, and General Requirements of the Contract
Documents.
45. Notice of Potential Claim: Refer to Paragraph 4.02.
46. Notice to Proceed: The written notice issued by the District to ESCO authorizing
ESCO to proceed with the Work and establishing the date of commencement of
the Contract Time.
4.12.99 00700 - 8 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
47. Notice of Substantial Completion: The written notice issued by the District to
ESCO acknowledging that the Work is Substantially Complete as determined by
the District. Said Notice shall not be considered as final acceptance of any
portion of the Work or relieve ESCO from completing the punch fist items
attached to said Notice within the specified time and in full compliance with the
Contract Documents.
48. Owner: Refer to “District.”
49. Paragraph: A paragraph under an Article of these General Conditions, other
Documents or Sections. Refer to "General Conditions—Table of Contents" for a
listing of Article and Paragraph numbers and titles.
50. Party or Parties: An entity or person that executes the Agreement.
51. PCO: Same as Proposed Change Order.
52. Premises: Same as Site(s).
53. Project: The completed improvements that constitute the Work that is to be
designed and constructed by ESCO pursuant to the Contract Documents.
54. Project Cost: The total sum to be paid by the District to ESCO for design and
construction of the Project (including but not limited to design fees, construction
costs, contingency funds, management costs, overhead and profit) as stated in
the Agreement (Document 00520).
55. Proposal; ESCO's proposal to the District for ESCO to Provide the Work.
56. Proposed Change Order (PCO): A document prepared by the District requesting
@ quotation of cost or time from ESCO for additions, deletions or revisions in the
Work initiated by the District.
57. Provide: Furnish and Install or Supply and Install complete in place at the
Facilities. Whenever the word or term “provide,” “to be provided,” “provision,” or
similar phrase is used in the Contract Documents, in regards to any and ail items
or things or any part of the Project to be provided under the Contract Documents
by ESCO, this word or these phrases shall mean that ESCO shall perform all
tasks and take all steps necessary to provide the Project, such item or thing, new,
complete, and in satisfactory operating condition, at no additional cost to the San
Francisco Unified School District and without any change in the Project Cost. In
this regard, the above-referenced word, term or phrase shall be interpreted to
include, but shall not be limited to, all design, re-design, engineering, re-
engineering, coordinating, drafting, programming, administration, supervision,
monitoring, management, overhead and profit, procurement, shipping and
handling, delivery, installation, erection, assembly, construction, adjusting,
testing, balancing, connecting, procurement, and/or rental of equipment with the
necessary appurtenances, tools, devices, computer hardware and software,
provision of labor and materials or any other item necessary to perform all tasks
associated with and necessary to the Work, including all remedial and corrective
work, and payment of all necessary permits and fees.
4.12.99 00700 - 9 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
58. Regular Working Hours: 7:00 a.m, to 5:00 p.m., Monday through Friday, except
District legal holidays; however, the Parties recognize that the Project will be
performed at schoo! Sites where classes will be in session. It shail be the
responsibility of ESCO to schedule performance of all Work during hours so that
classes will not be disturbed by the performance of the Work. If the school
Principal at any of the Premises determines that performance of the Work is
disturbing class(es), ESCO shall discontinue Performance of that Work
immediately and shall reschedule the performance of that Work to a time when it
will not disturb class(es), without adjustment to the Contract Time or Project Cost.
59. Request for Information (RFI): A document prepared by ESCO or the District
requesting information from one of the Parties regarding the Project or Contract
Documents.
60. Required: In accordance with the requirements of one or more of the Contract
Documents.
61. Site: A school where Work is to be performed.
62. Special Conditions: Document 00823.
63. Specifications: The written portion of the Construction Documents required to be
prepared by ESCO and approved by the District. The Specifications shall be
organized into a format acceptable to the District and regulatory agencies with
jurisdiction over the Project, and shall provide the requirements and technical
descriptions of materials, equipment, systems, standards and workmanship for
the Work, and performance of related administrative services.
64. Specified: Called for or required by the Contract Documents.
65. Subconsultant: A person orentity that has a direct contract with ESCO to provide
professional services, such as design and/or construction administration services
for the Project.
66. Subcontractor: A person or entity who has a direct contract with ESCO to
perform a portion of the Work at the Facilities, The term “Subcontractor” is
referred to throughout the Contract Documents as if singular in number and
neuter in gender and means a Subcontractor or an authorized agent or
representative of the Subcontractor. The term "Subcontractor does not include a
separate contractor or subcontractors of a separate contractor. The term
“Subcontractor” shall also include contracts assigned to ESCO by the District.
67. Substantial Completion and Substantially Complete: The stage in the progress of
the Work when the Work is sufficiently complete in accordance with the Contract
Documents so that the Work can be utilized for the Purposes for which it is
intended.
68. Supplementary Conditions: The part of the Contract Documents that amends,
modifies, or supplements these General Conditions. The Supplementary
Conditions include Documents 00801, 00802, 00805, 00810, 00811 and 00822
as listed in the Table of Contents (Document 00010). Refer also to “Document”.
4.12.99 00700 - 10 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT
69. Supplier: A manufacturer, fabricator, distributor, or vendor having a direct
contract with ESCO or with a Subcontractor to furnish materials or equipment to
be incorporated in the Work.
70. Supply: Refer to “Furnish.”
71. Team: The essential personnel on ESCO's team identified in writing by ESCO
and approved by the District prior to execution of the Agreement. ESCO and its
Subcontractors and Subconsultants agree that said individuals will not be
transferred or removed from the Project without the prior written permission or
direction of the District, which will not be unreasonably withheld. ESCO shall
replace essential personnel where necessary with individuals acceptable to the
District.
72. Testing Agencies: An independent entity engaged by the District or ESCO, as
specified in the Contract Documents, to perform specific inspections or tests,
either at the Facilities or elsewhere, and to report on and, if required, to interpret
results of those inspections or tests.
73. Unavoidabie Delay: Refer to Paragraph 8.02.
74. Unilateral Change Order: A written Change Order to ESCO by the District issued
after the Effective Date of the Agreement in accordance with Paragraph 7.03.
75. Unknown or Differing Conditions: As defined in Document 00811.
76. Work: The performance by ESCO of ail its responsibilities and obligations set
forth in the Contract Documents. Work shall include, but not be limited to,
Providing all labor, materials, equipment, design services, and documentation
required by the Contract Documents for the design and construction of the
Project. References in the Contract Documents to “Work” may be to items of
Work.
1.04 MEANING AND INTENT OF THE CONTRACT DOCUMENTS
A.
4.12.39
The Contract Documents will be construed in accordance with the laws of the State of
California and applicable building codes and statutes of the City and County of San
Francisco.
The intent of the Contract Documents is to make ESCO responsible to Provide for a
functionally complete and operational Project, well-suited for its intended purpose, to
be designed and constructed in accordance with the Contract Documents. All Work,
materials, and equipment necessary to properly execute and complete the Work and
fulfill the intent of the Contract Documents shall be provided by ESCO with no change
in the Project Cost or Contract Time.
In interpreting the Contract Documents, words describing materials or Work with a
well-known technical or trade meaning, unless otherwise specifically defined in the
Contract Documents, shail be construed in accordance with such well-known meaning.
In the event of conflict in the Contract Documents regarding the quality of a product,
ESCO shail request Clarification from the District as provided in Paragraph 1.05 before
procuring said product or proceeding with the Work affected thereby.
00700 - 11 General Conditions
ENERGY SERVICE AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
—. In the interest of brevity, the Contract Documents frequently omit modifying words
such as “all” and “any” and articles such as "the" and “an,” but the fact that a modifier
or an article is absent from one statement and appears in another is not intended to
affect the interpretation of either statement.
F. When there is a conflict between existing on-Site conditions and information indicated
in the Contract Documents, other than Unforeseen or Differing Conditions as defined
in Document 00811, the existing condition shall govern. ESCO shall perform the Work
and adjust to the existing condition at no change in the Project Cost and no adjustment
in the Contract Time.
41.05 INTERPRETATIONS OF CONTRACT DOCUMENTS
A. Should questions arise as to the meaning or intent of the Contract Documents, or
should the District's comments on submittals returned to ESCO appear to ESCO to
change the requirements or scope of the Contract Documents, ESCO shall submit a
Request for Information (RFI) to the District promptly in accordance with the General
Requirements. ESCO shall coordinate and schedule its Work to provide the District
sufficient time to issue a written reply before proceeding with Work affected thereby.
B. The District's RFI reply, which may include written Clarifications as deemed by the
District to be necessary and consistent with the Contract Documents, will be issued
within 15 days of receipt of the RFI, or longer with written notification of additional time
required to ESCO. if ESCO believes such Clarifications exceed the requirements of
the Contract Documents, ESCO may submit a Change Order Request as provided in
Paragraph 4.01.
C. All references in the Contract Documents to satisfactory, sufficient, reasonable,
acceptable, suitable, proper, correct, or adjectives of like effect shall be construed to
describe an action or determination of the District Representative for the sole purpose
of evaluating the completed Work for compliance with the requirements of the Contract
Documents and conformance with the intent as expressed in subparagraph 1.04B.
Subject to the provisions of Article 4 and Paragraph 14.03 herein, the foregoing
described determinations of the District Representative shall be final and conclusive.
1.06 MODIFICATION OF CONTRACT DOCUMENTS
A. The Contract Documents may be amended after execution of the Agreement to
provide for additions, deletions, and revisions in the Work or to modify the terms and
conditions thereof in one or more of the following ways: (i) a Change Order; or (ii) a
Unilateral Change Order.
B. In addition, the requirements of the Contract Documents may be supplemented, and
minor variations and deviations in the Work may be authorized, in one or more of the
following ways: (i) a Field Order; (ii) a Clarification, written interpretation or other
written instruction issued by the District; or (iii) the District's review and acceptance of
shop drawing or sample in accordance with Paragraph 2.05.
1.07 PRECEDENCE OF DOCUMENTS
A. Inthe case of discrepancy or ambiguity in the Contract Documents, the following order
of precedence shalt prevail (listed in order of highest to lowest precedence):
4.12.99 00700 - 12 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
5.
Modifications in inverse chronological order, and in same order as specific
portions they are modifying.
Executed Agreement.
General Conditions.
Supplementary Conditions.
Special Conditions.
ARTICLE 2 - DISTRICT'S RESPONSIBILITIES AND RIGHTS
2.01 ASSIST IN OBTAINING APPROVALS
The District will provide assistance in filing documents as required to obtain necessary approvals
of governmental authorities having jurisdiction over the Project.
2.02 RIGHT TO STOP THE WORK
A. The District may order ESCO to stop the Work, or a portion thereof, until the cause for
such order has been eliminated. Any such order to stop the Work shall be in writing
and shall be signed by the District Representative unless otherwise agreed to by the
District, the Contract Time will not be extended as a result of an order to stop the
Work.
B. However, the right of the District to stop the Work shall not give rise to a duty on the
part of the District to exercise this right for the benefit of ESCO or other person or
entity.
C. Reasons for ordering ESCO to stop the Work include, but are not limited to, the
following:
1.
4.12.99
ESCO fails to correct Work which is not in accordance with the material
requirements of the Contract Documents; or
ESCO fails to carry out Work in accordance with the material requirements of the
Contract Documents; or
ESCO disregards the authority of the authorized District Representative; or
ESCO disregards the laws, regulations or orders of a public body having
jurisdiction over the Project; or
ESCO violates any material provision of the Contract Documents; or
ESCO fails to maintain current certificates of insurance on file with the District; or
ESCO is proceeding with original Contract Work, which will be modified by a
pending Change Order.
00700 - 13 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
2.03 RIGHT TO CARRY OUT THE WORK
A. In the event that ESCO fails to carry out the Work in accordance with the Contract
Documents and fails to promptly correct or prosecute the Work within a 14-day period
following a written notice of a deficiency from the District, or other such period as may
be specified by the District in its written notice, the District may, without prejudice to
other remedies the District may have, correct such deficiencies; however, where
issues of health or safety are involved, ESCO shall correct such deficiencies in such
shorter period of time as the District determines is prudent or necessary or the District
may correct the deficiencies,
B. In such case, the District will deduct all costs of such corrections, including the costs of
District staff and consultants, from the Project Cost.
2.04 NO WAIVER OF RIGHTS
A. None of the following shall operate as a waiver of any provision of the Contract
Documents or of any power herein reserved by the District or any right to damages
herein provided:
1. inspection by the District or its authorized agents or representatives; or
2. any order for, or acceptance of, the whole or any part of the Work by the District;
or
3. any extension of time; or
4. any position taken by the District or its authorized agents or representatives.
B. No waiver of any breach of any provision of the Contract Documents shall be held to
be a waiver of any other or subsequent breach. The only waiver by the District shail
be a waiver in writing that explicitly states the item or right being waived.
C. All remedies provided in the Contract Documents shall be taken and construed as
cumulative; that is, in addition to each and every other remedy herein provided, the
District shall have any and all equitable and legal remedies which it would in any case
have.
2.05 OVERSIGHT OF THE CONTRACT
A. The District's involvement and oversight of the Agreement is described in the Contract
Documents.
B. The District Representative will be designated in writing and will have limited authority
to act on behalf of the District. The District may at any time during the performance of
the Work make changes in the authority of any representative or may designate
additional representatives in accordance with the District's Board’s policies and
regulations. These changes will be communicated to ESCO in writing. ESCO
assumes all risks and consequences of performing Work pursuant to any order,
including but not limited to instruction, direction, interpretation or determination, of
anyone not authorized to issue such order.
4.12.99 00700 - 14 ~ General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT
C. The review, approval, or other action taken by the District upon ESCO's submittals
such as drawings, plans, specifications, shop drawings, product data, samples and
other submittals, shall apply to general design concepts only, and shall in no way
relieve ESCO from its responsibility to compiete a fully functional and operational
Project, nor from providing all labor, equipment, and materiais in accordance with the
requirements of the Contract Documents necessary for the Proper execution of the
Work. The District's action will be taken with such reasonable Promptness provided
that the District shall be provided a reasonable time, as set forth in the General
Requirements, to permit adequate review. Approval of submittals shall not affect the
Project Cost, and additional costs that may result therefrom shall be ESCO’s sole
obligation. ESCO shall be responsible to provide
Preview
NN San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Friday Nov 09, 2001 3:29 pm Case Number: CGC-01-401167 Filing Date: Nov 09, 2001 3:30 pm Juke Box: 001 Image: 00298062 GENERIC CIVIL FILING (NO FEE) STRATEGIC RESOURCE SOLUTIONS CORP. VS. SAN FRANCISCO UINFIED SCHOOL DISTRICT et al 001000298062 Instructions: Please place this sheet on top of the document to be scanned.oO ona 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PILLSBURY WINTHROP LLP MARK N. WHITE 88335 JEFFREY S. ROSS 67345 CHRISTOPHER RODRIGUEZ 212274 WILLIAM J. DORGAN 212391 50 Fremont Street San Francisco, CA 94105-2230 Telephone: (415) 983-1000 Facsimile: (415) 983-1200 Attorneys for Plaintiff STRATEGIC RESOURCE SOLUTIONS CORP. 2 Moy 7 “tay 0 bp, y Noy 9 2001 eats, Clerk CITY AND COUNTY OF SAN FRANCISCO STRATEGIC RESOURCE SOLUTIONS CORP., a North Carolina corporation, Plaintiff, vs. SAN FRANCISCO UNIFIED SCHOOL DISTRICT; CRITICAL SOLUTIONS, INC., a California corporation, ABN AMRO INCORPORATED, a New York corporation; and DOES 1-100, inclusive, Defendants. ee eee Pol 10564183v1 -1- vo. GO] 4S 7 EXHIBITS TO COMPLAINT FOR (1) BREACH OF CONTRACT, (2) BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING, (3 INTENTIONAL INTERFERENCE WITH CONTRACT, (4) NEGLIGENCE, (5 DECLARATORY RELIEF, (6) CONSTRUCTIVE TRUST, (7) EQUITABLE LIEN, (8) ORDER FOR DEPOSIT (CODE CIV. PROC. § 572), AND (9 INJUNCTIVE RELIEF Amount demanded exceeds $10,000 2 3 EXHIBITS TO COMPLAINTExot’SAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT DOCUMENT 00520 AGREEMENT FORM CONTRACT No. LOT Resotutionno,__94 -\3 BF THIS ENERGY SERVICES AGREEMENT is made this : day of A.D. 1999 by and between STRATEGIC RESOURCE SOLUTIONS (hereinafter called “ESCO") and the SAN FRANCISCO UNIFIED SCHOOL DISTRICT (“hereinafter called District”), acting through its Executive Director of Facilities (hereinafter called "Director*) under and by virtue of the authority granted to him as ~N such by the District's Board of Eductation. Satisfaction of the Director, to prosecute the Work with diligence from day to day to Final Completion, to furnish all the materials to be used in the execution and completion of the Work in accordance with the Contract Documents, and to otherwise fulfill all of ESCO’s obligations under the Contract Documents to the satisfaction of the Director. Article 1 - WORK. The Work shall be Provided according to the Contract Documents which are incorporated into this Agreement and made a part hereof by this reference, and alt materials used in Providing the Work shall comply with the District's Requirements. The Contract Documents, which comprise the entire agreement between ESCO and the District concerning the Provision of the Work, are defined in the General Conditions (Document 00700). Any undefined term used in this Agreement shall be given the definition set forth in the General Conditions (Document 00700). Article 2 - CONTRACT TIMES, All Work related to Boilers must be Substantially Complete no later than the close of business on October 15, 2000; and all other Work must be Substantially Complete no later than the close of business on August 15, 2000. Final Completion for each of the two aforementioned scopes of Work shall occur no later than 60 consecutive calendar days after the Notice of Substantial Completion is issued by the District. Article 3 - LIQUIDATED DAMAGES. It is understood and agreed by and between ESCO and the District that time is of the essence in all matters relating to the Contract Documents and that the District will suffer financial loss if the Work is not completed within the above stated Contract Times, plus any extensions thereof allowed in accordance with Article 8 of the General Conditions (Document 00700). Accordingly, ESCO and the District agree that as liquidated damages for delay (but not as a penalty), ESCO shall pay the District the the amounts set forth in Contract Time and Liquidated Damages (Document 00802) for each calendar day that expirés after the Contract Times set forth above in Article 2. District and ESCO understand and agree that the actual costs to District which would result from ESCO's failure to complete the Work within the Contract Time is extremely difficult, if not impossible, to determine. Article 4 - LABOR REQUIREMENTS. 4.01 Wages and compensation to be paid for labor performed or services rendered under this Agreement shall be in accordance with the Contract Documents. 4.12.99 00520 - 1 AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 4.02 The latest Wage Rates for Private Employment on Public Contracts in the District and County of San Francisco, as determined by the Director of the California Department of Industrial Relations, as the same may be changed during the term of this Agreement, shall be included in this Agreement and are hereby incorporated by this reference. ESCO agrees that any person performing labor in the Provision of the Work shall be paid not less than the prevailing rate of wages as so determined. ESCO shall include, in any contract or subcontract relating to the Work, a requirement that all persons performing labor under such contract or subcontract shall be paid not less than the prevailing rate of wages for the labor so performed. ESCO shall provide to the District for Work performed by its employees, and shall require any contractor or subcontractor performing Work on the Project to provide, and shall deliver to District every month during any construction period, certified payroll reports with respect to all persons performing labor in the Provision of the Work, excepting performance of professional services. 4.03 ESCO shall pay to the District twenty-five dollars ($25.00) for each laborer, workman, or mechanic employed by ESCO in the Provision of the Work for each calendar day during which such laborer, workman, or mechanic is required or permitted to labor more than eight hours in any one calendar day or 40 hours in any one calendar week in violation of the provisions of sections 1810 to 1815, inclusive, of the State Labor Code. Article 5— RESOLUTION OF CONFLICT. 5.01 It is expressly agreed by and between ESCO and the District that should there be any conflict between the terms of this Agreement and the Proposal of ESCO, then this Agreement shall control and nothing herein shall be considered as an acceptance of any terms of the Proposal which conflict with this Agreement. Article 6 - PROJECT COST. ESCO and District agree that the Project Cost shall be twenty-one million, two hundred and eighty nine thousand, nine hundred and nine dollars ($21,289,909.00). The Project Cost may be adjusted upward or downward from time to time in accordance with the Contract Documents. Article 7 - INDEMNITY. To the fullest extent permitted by law, and consistent with California Civil Code section 2782, ESCO shall assume the defense of, indemnify and hold harmless the District, its boards and commissions, attorneys and other parties designated in Paragraph 1.4 of Insurance Requirements (Document 00805), and all of their officers, agents, members, employees, authorized representatives, or any other persons deemed necessary by any of them acting within the scope of the duties entrusted to them, from all claims, suits, damages, actions, losses and liabilities of every kind, nature and description, including but not limited to attorney's fees, directly or indirectly arising out of, connected with or resulting from the performance or nonperformance of the Work. The liability of ESCO shall not be limited to the amount of insurance coverages required under the Contract Documents. This indemnification shall not be valid in _the instance where the loss is caused by the solé negligence or intentional tort of any person indemnified herein. This obligation does not limit other obligations for ESCO to indemnify the District as set forth elsewhere in the Contract Documents. Article 8- RELEASE. * ESCO, as a material part of the consideration of this Agreement, hereby waives and releases any and all claims against District from any losses, including damages to goods, goodwill, merchandise, equipment or business opportunities, for any cause or any claim relating to the Project or procurement process District utilized in selecting ESCO, existing at the time this Agreement is executed or relating to 412.99 00520-2 AGREEMENTSe SAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT District's execution and delivery of this Agreement; provided however, the above shall not alter the District's obligations under the Agreement or ESCO's ability to make Claims or otherwise enforce the Agreement in accordance with its terms. Article 9- TERMINATION. This Agreement and the other Contract Documents shall, uniess sooner terminated, terminate upon Final Completion of the Work or as set forth in Article 14 of the General Conditions (Document 00700). IN WITNESS WHEREOF, ESCO and the District have hereunto set their hands and seals, and have executed this Agreement in duplicate, the day and year first above written. By my signature hereunder, as ESCO, | certify that | am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workmen's compensation or to undertake self- insurance in accordance with the provisions of that code, and ! will comply with such provisions before commencing the performance of the Work of this Contract. STRATEGIC RESOURCE SOLUTIONS CORP. ELA BS Waban d Robert D. Morehead President and Chief Operating Officer SAN FRANCISCO UNIFIED SCHOOL DISTRICT Lucian Blazej D Executive Director of Facilities Approved as to form: LOUISE H. RENNE District Attorney Deputy District Attorney \ END OF DOCUMENT 4.12.99 00520 - 3 AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT DOCUMENT 00610 PERFORMANCE BOND & PAYMENT (LABOR AND MATERIAL) BOND RESOLUTION No._744- 1384 KNOW ALL MEN BY THESE PRESENTS, that WHEREAS, the San Francisco Unified School District, has awarded to STRATEGIC RESOURCE SOLUTIONS CORP., hereinafter designated as the “Principal,” the following contract: ENERGY SERVICES AGREEMENT CONTRACT No, 80100, WHEREAS, said Principal is required under the terms of said Agreement to furnish a Bond for the faithful performance of the Work under the terms of the Agreement and the Contract Documents; and to fumish a separate Bond for the payment of any materials, provisions, or other supplies, used in, upon, for or about the performance of the work contracted to be done; NOW, THEREFORE, we the Principal and as Surety, are firmly bound unto the San Francisco Unified School District in the penal sum of PERFORMANCE BOND $21,289,909.00 PAYMENT BOND $21,289,909.00 lawful money of the United States for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally firmly by these presents for a performance bond and an equal and separate penal sum for a separate Payment bond. The conditions of this obligation are such that if the said principal does well and faithfully performs all the conditions and covenants of said Contract Documents, according to the true intent and meaning thereof, upon its part to be kept and performed, then the above obligation is to be null and void, otherwise to remain in full force and effect. (PERFORMANCE BOND) THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above bounden Principal, its heirs, executors, administrators, ‘successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the said Contract Documents, including warantees and guarantees and the provisions for liquidated damages in the ‘said Contract Documents, any changes, additions or alterations thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the District, its officers and agents, as + therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. (PAYMENT BOND) THE CONDITION OF THIS OBLIGATION IS SUCH, that if said principal, its heirs, executors, administrators, successors or assigns, of his or its subcontractor or subcontractors, shall fail to pay for any materials, provisions, or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or for amounts due the Unemployment Insurance Act with respect to such work or labor, then the surety of this Bond will pay for same, in an amount not exceeding the sum specified in this Bond, and in case suit is brought upon this Bond will also pay a reasonable attomey’s fee, to be fixed by the Court. This Bond shall inure to the benefit of any and all persons, companies, corporations, political subdivisions and state agencies, entitled to file claims under the provisions of Califomia Civil Code section 3247 et seqitur. And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or the Contract Documents or to the work to be performed thereunder and no inadvertent overpayment of progress payments shall in any way affect its obligations on these 4.12.99 00610 -1 PERFORMANCE BOND & PAYMENT BONDSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT Bonds, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or the Contract Documents or of any inadvertent overpayment of progress payments. IN WITNESS WHEREOF, the above-bounden Parties have executed this instrument under their seal this day of. , 19___, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative, pursuant to authority of its governing body. Approved as to form: LOUISE H. RENNE District Attorney Principal By: By: Deputy District Attorney Surety By: END OF DOCUMENT 4.12.99 00610-2 PERFORMANCE BOND & PAYMENT BONDSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT DOCUMENT 00700 GENERAL CONDITIONS TABLE OF CONTENTS Article or Paragraoh Number & Title Page ARTICLE 1 - GENERAL 4.01 Contract Documents Defined 00700 - 4 1.02 Contract Documents 00700 - 4 1.03 Basic Definition of Terms Used in the Contract Documents 00700 -5 1.04 Meaning and Intent of Contract Documents 00700 - 11 1.05 Interpretations of Contract Documents 00700 - 12 1.06 Modification of Contract Documents 00700 - 12 1.07 Precedence of Documents 00700 - 12 ARTICLE 2 - DISTRICT'S RESPONSIBILITIES AND RIGHTS 2.01 Assist in Obtaining Approvals 00700 - 13 2.02 Right to Stop the Work 00700 - 13 2.03 Right to Carry Out the Work 00700 - 14 2.04 No Waiver of Rights 00700 - 14 2.05 Oversight of the Contract 00700 - 14 2.06 Amounts Owed to the District 00700 - 15 ARTICLE 3 - ESCO'S RESPONSIBILITIES 3.01 Design Responsibilities 00700 - 15 3.02 Supervision of the Work 00700 - 16 3.03 Labor, Materials and Equipment 00700 - 17 3.04 Warranty 00700 - 18 3.05 Taxes 00700 - 19 3.06 Permits, Fees and Notices 00700 - 19 3.07 Superintendents 00700 - 21 3.08 Progress and Submittal Schedules 00700 - 21 3.09 Substitutions 00700 - 22 3.10 Record Documents 00700 - 22 3.11 Shop Drawings, Product Data and Samples 00700 - 22 3.12 Use of Site 00700 - 23 3.13, Cleaning Up and Removal of Debris 00700 - 24 3.14 Access to Work 00700 - 24 3.15 Royalties and Patents 00700 - 25 3.16 Indemnification 00700 - 25 3.17 ESCO's Daily Report 00700 - 26 3.18 Computerized Job Cost Reporting System 00700 - 26 3.19 Project Financing 00700 - 27 4.12.99 00700 - 1 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT Article or Paragraph Number & Title Page ARTICLE 4 - CLARIFICATIONS AND CLAIMS 4.04 Clarifications 00700 - 27 4.02 Claims 00700 - 27 ARTICLE 5 - SUBCONTRACTORS AND SUBCONSULTANTS 5.01 Subcontracts and Other Contracts for Portions of the Work 00700 - 29 5.02 Subcontractual Relations 00700 - 29 §.03 Assignability of Subcontracts 00700 - 30 5.04 Successors and Assigns 00700 - 30 ARTICLE 6 - CONSTRUCTION BY THE DISTRICT OR BY SEPARATE CONTRACTORS 6.01 District's Right to Perform Construction and to Award Separate Contracts 00700 - 31 6.02 Coordination 6.03 Clean Up Responsibilities ARTICLE 7 - CHANGES IN THE WORK 7.01 Additions, Deletions and Revisions 7.02 Change Orders 7.03 Unilateral Change Orders 7.04 Cost of the Work 7.05 Force Account Work 7.06 Audit ARTICLE 8 - TIME 8.01 Progress and Completion 8.02 Delays and Extensions of Time 8.03 Notice of Labor Disputes 00700 - 32 00700 - 33 00700 - 33 00700 - 34 00700 - 35 00700 - 35 00700 - 39 00700 - 40 00700 - 41 00700 - 42 00700 - 46 ARTICLE 9 ~ PAYMENTS, COMPLETION AND LIQUIDATED DAMAGES 9.01 Project Cost 9.02 Schedule of Values 9.03 Progress Payments 9.04 Payment Authorization 9.05 Decisions To Withhold Payment 9.06 Project Completion and Final Payment 9.07 Partial Utilization 9.08 Substantial Completion 9.09 Final Completion 9.10 Liquidated Damages 4.12.99 00700 - 2 00700 - 46 00700 - 46 00700 - 47 00700 - 49 00700 - 49 00700 - SO 00700 - 51 00700 - 52 00700 - 52 00700 - 53 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT Article or Paragraph Number & Title ARTICLE 10 - SAFETY 10.04 10.02 10.03 10.04 Precautions and Programs Persons and Property Safety Permits Emergencies ARTICLE 11 - INSURANCE AND BONDS 11.01 11.02 insurance Requirements Performance Bond and Payment Bond ARTICLE 12 - INSPECTION AND CORRECTION OF WORK 12.01 12.02 12.03 12.04 12.05 Uncovering of Work Tests and Inspections Correction of Non-Conforming Work Correction Period Acceptance of Non-Conforming Work ARTICLE 13 - MISCELLANEOUS PROVISIONS 13.01 13.02 13.03 13.04 13.05 13.06 13.07 13.08 13.09 13.10 13.11 Governing Law Written Notice Rights and Remedies Equal Opportunity Apprentices Wages and Payrolls Partnering Limitation on District's Liability Conflict of interest Supervision by the Office of Regulation Services Criminal Background Checks ENERGY SERVICE AGREEMENT Page 00700 - 53 00700 - 54 00700 - 55 00700 - 56 00700 - 56 00700 - 56 00700 - 56 00700 - 57 00700 - 58 00700 - 58 00700 - 59 00700 - 60 00700 - 60 00700 - 60 00700 - 60 00700 - 61 00700 - 61 00700 - 63 00700 - 64 00700 - 64 00700 - 64 00700 - 65 ARTICLE 14 - TERMINATION OF CONTRACT OR WITHDRAWAL FROM THE PROJECT 14.04 14.02 14.03 4.12.99 Termination by the District for Cause Suspension by the District for Convenience Termination by the District for Convenience END OF TABLE OF CONTENTS 00700 -3 00700 - 65 00700 - 65 00700 - 65 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT GENERAL CONDITIONS ARTICLE 4 - GENERAL 1.01 CONTRACT DOCUMENTS DEFINED A. The Contract Documents consists of the following and any subsequently executed modifications thereto: 1. the executed Energy Services Agreement (Document 00520) and any properly executed written modifications thereto; the Design Requirements, which supplement the Energy Services Agreement (Document 00801); the Special Conditions (Document 00823); Performance Bond and Payment Bond (Document 00610); these General Conditions (Document 00700); the Supplementary Conditions (Documents 00801, 00802, 00805, 00810, 00811, 00814, 00815, 00820 and 00822); the Construction Documents, which will be prepared by ESCO and Accepted by the District. The Contracting Requirements (Documents 00520 through 00822) establish the rights and responsibilities of the Parties with respect to the design and construction of the Project and include these General Conditions and the Supplementary Conditions (Document 00800 through 00822). 1. The General Requirements are defined at Paragraph 1.03. 1.02 CONTRACT DOCUMENTS A. 4.12.99 The Contract Documents sets forth all of the terms and conditions relative to ESCO’s design and construction of the Project. ESCO's signing of the Agreement signifies its acceptance of the Contract Time and Project Cost as being sufficient for completion of the Work, including both design and construction activities, as well as acceptance of the other terms and conditions of the Contract Documents. 00700 - 4 General Conditions ENERGY SERVICE AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 1.03 BASIC DEFINITION OF TERMS USED IN THE CONTRACT DOCUMENTS A. Wherever a word or phrase defined below, or a pronoun used in place thereof, is used in the Contract Documents, it shall have the meaning herein set forth. The colon ("") is employed in this Paragraph as a symbol for "shall mean". A colon also may be employed to set off a paragraph title or heading from the text that follows or as a punctuation mark in a sentence to direct attention to matter that follows. 1. Accepted, Approved: Accepted or approved, or Satisfactory for the Work, as determined in writing by the District, unless otherwise specified. Where used in Conjunction with the District's response to submittals, requests, applications, inquiries, proposals and reports by ESCO, the term “approved” shall be held to limitations of the District's responsibilities and duties as specified in these General Conditions. In no case shall the District's approval be interpreted as a release or waiver of ESCO from its responsibilities or obligations under the Contract Documents. 2. Agreement: The Agreement (Document 00520) to be entered into by and between the District and ESCO relating to the design and construction of the Project. 3. Approved Equal: Approved in writing by the District as being of equivalent quality, utility and appearance. Equivalent means equality in the opinion of the District Representative. The burden of proof of equality is the responsibility of ESCO. Refer to the General Requirements for procedures for proposing substitutions. 4. Architect: A person or entity that is a member of ESCO team who is lawfully entitled to practice architecture or engineering in the State of California who will provide design services for the Project. 5. Article: An article of the Contract Documents. Refer to the Table of Contents - General Conditions for a listing of Article numbers and titles of these General Conditions. 6. Bonds: Proposal, performance and payment (labor and materials) bonds and other instruments of security acceptable to the District. Refer to Document 00410 and Document 00610. 7. By Others: Work on this Project that is outside the scope of Work to be performed by ESCO under the Agreement, but that will be performed by the District, other parties, or other means and at other expense. 8. Change Order: A written instrument prepared by the District issued after the effective date of the Agreement and executed in writing by the District and ESCO, Stating their agreement upon all of the following (i) a District requested change in the Work; (ii) the amount of the adjustment in the Project Cost, if any, and (iii) the extent of the adjustment in the Contract Time, if any. 9. Claim: A written demand by ESCO for an adjustment in the Project Cost or Contract Time, or both, which is submitted in accordance with the requirements of the Contract Documents. 4.12.99 00700 -5 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 10. Clarification: A document consisting of supplementary details, instructions or information issued by the District that clarifies or supplements the District's requirements for Work under of the Contract Documents. Clarifications do not constitute a change in the Work, Project Cost or an extension of Contract Time. 11. Code: Code or codes in force under the Contract Documents or reasonably anticipated by design professionals in accordance with the standard of care for their discipline. Wherever reference is made to Code, that reference shall be construed to mean the codes, Laws or orders applicable to the item of Work or the Project. 12. Construction Documents: The Drawings and Specifications prepared by ESCO and approved by the District, which are more fully described in the Design Requirements (Document 00801). 13. Contract Documents: As defined in Paragraphs 1.04 and 1.04. 14. Contract Time: The number of successive days as stated in Document 00802 to: (i) achieve Substantial Completion and (ii) achieve Final Completion. 15. Contracting Requirements: As defined in subparagraph 1.018. 16. Day: Reference to “day” shall be construed to mean a calendar day of 24 hours, unless otherwise specified. 17. Delivery: In reference to an item specified or indicated shall mean to transport to the Facilities and unload and store with proper protection. 18. Design Requirements: The design-related work and construction support services required to be provided by ESCO as set forth in Document 00801 and required to be performed by properly licensed design professionals. 19. Designated, Determined, Directed: Required of ESCO by the District, unless otherwise specified. 20. District: The San Francisco Unified Schoo! District, identified as such in the Agreement and referred to throughout the Contract Documents as if singular in number, 21. District Representative or Project Manager (PM): The District's authorized on- Site representative. identified by the District in writing, who will act as the District's representative with respect to ESCO’s performance of the Work. Such person shall have complete authority to transmit instructions, receive information, interpret and define the District’s policies, make decisions with respect to the performance of the Work, and provide such other services as may be designated by the District. All communication between the District and ESCO shall’be directed through the District Representative. 22. ESCO: The energy services contractor selected by the District to design and build the Project and with whom the District has executed and delivered the Agreement following approval by the District's Governing Board. ESCO is referred to throughout the Contract Documents as if singular in number and neuter in gender. The term "ESCO" means ESCO and its authorized 4.12.99 00700 -6 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT representatives and agents, employees, successors and assigns, and any persons or entities who work by, through, or for any of them. 23. Director: The Executive Director of the Department of Facilities Management of the San Francisco Unified School District, State of California, the contracting officer for the Agreement, acting directly or through properly authorized representatives, agents, and consultants, limited by the particular duties entrusted to them. 24. District Requirements: Materials and equipment shall be new, first-class for the type, well suited for the intended purpose and subject to District approval. 25. Document: Refer to Document 00010 for a listing of the Documents. 26. Drawings: The graphic and pictorial portions of the Construction Documents to be prepared by ESCO and approved by the District and the Office of the State Architect showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, addenda, permit drawings and diagrams. 27. Effective Date of the Agreement: The date indicated in the Agreement on which it was executed, 28. Facilities: The school Sites where the Work Is to be performed. 29. Field Order: A written order issued by the District which requires minor changes in the Work but which does not involve a change in the Project Cost or the Contract Time. 30. Final Completion: The date of written acceptance of the Project by the District when the Agreement has been fully performed, including all punch list items, and when all contractual and administrative requirements have been fulfilled. 31. Force Account Work: Change Order Work resulting in a change in the Project Cost on the basis of direct costs plus markup on direct costs for overhead and profit as provided in Paragraph 7.05. 32. Furnish: Purchase and deliver to the Facilities ready for installation, including proper storage; no installation is included. The term "Furnish" also means to Supply and Deliver to the Facilities. 33. General Requirements: The District's criteria for administrative requirements and procedural requirements. Administrative and procedural requirements are those relating to the process of contract administration, the assignment of contractual responsibilities and the methods of communicating, verifying and coordinating requirements for quality assurance. 34. Indemnify: A contractual obligation by which one person or entity agrees to reimburse others for loss or damage arising from specified liabilities. 35. Indicated: Shown or noted on the Drawings or written in the Specifications. 4.12.99 00700 -7 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT , ENERGY SERVICE AGREEMENT 36. Install: Apply, connect or erect items for incorporation into the Project; Furnishing or Supplying is not included. The term "Install" aiso describes operations at the Facilities, including unpacking, assembly, erection, placing, anchoring, applying, working to dimension, finishing, curing, protecting, cleaning, and similar operations. 37. Installer: A person engaged by ESCO, its Subcontractor or Lower-Tier Subcontractor for performance of a particular element of construction at the Facilities, including installation, erection, application and similar required operations. It is a requirement that installers be expert in the operations they are engaged to perform. 38. Item: A separate, distinct portion of the whole Work, which may comprise material, equipment, article, or process. 39. Law or Laws: Any one or more of all applicable laws, ordinances, rules, regulations, permits, authorizations, orders and requirements, including, without limitation, all consents or approvals required to be obtained from, and all rules and regulations of, and all building and zoning laws of, all federal, state, county and municipal governments, the departments, bureaus, agencies or commissions thereof, authorities, board of officers, any national or local board of fire undemriters, or any other body or bodies exercising similar functions, having or acquiring jurisdiction of, or which may affect or be applicable to the Facilities or any part thereof, including, without limitation, any subsurface area, use thereof and the buildings and Improvements thereon. 40. Lower-Tier Subcontractor or Supplier: A person or entity who has a direct contract with a Subcontractor or Supplier, or with another Lower-Tier Subcontractor or Supptier, to perform a portion of the Work at the Facilities or to furnish materials or equipment to be incorporated in the Work by ESCO, Subcontractor or Lower-Tier Subcontractor, as applicable. 41. Modification: One or more Change Orders processed as a group. 42. Non-conforming Work: Work that is unsatisfactory, faulty, defective, or deficient; Work that does not meet the requirements of inspection, reference standards, tests, or approval referred to in the Contract Documents; or Work that has been damaged prior to the District's filing of the Notice of Final Completion. 43. Notice of Delay: Refer to Paragraph 8.02. 44. Notice of Final Completion: The document approved in writing by the District and filed by ESCO, with the Recorder's Office, after the Work has been fully performed, including all punch list, and General Requirements of the Contract Documents. 45. Notice of Potential Claim: Refer to Paragraph 4.02. 46. Notice to Proceed: The written notice issued by the District to ESCO authorizing ESCO to proceed with the Work and establishing the date of commencement of the Contract Time. 4.12.99 00700 - 8 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 47. Notice of Substantial Completion: The written notice issued by the District to ESCO acknowledging that the Work is Substantially Complete as determined by the District. Said Notice shall not be considered as final acceptance of any portion of the Work or relieve ESCO from completing the punch fist items attached to said Notice within the specified time and in full compliance with the Contract Documents. 48. Owner: Refer to “District.” 49. Paragraph: A paragraph under an Article of these General Conditions, other Documents or Sections. Refer to "General Conditions—Table of Contents" for a listing of Article and Paragraph numbers and titles. 50. Party or Parties: An entity or person that executes the Agreement. 51. PCO: Same as Proposed Change Order. 52. Premises: Same as Site(s). 53. Project: The completed improvements that constitute the Work that is to be designed and constructed by ESCO pursuant to the Contract Documents. 54. Project Cost: The total sum to be paid by the District to ESCO for design and construction of the Project (including but not limited to design fees, construction costs, contingency funds, management costs, overhead and profit) as stated in the Agreement (Document 00520). 55. Proposal; ESCO's proposal to the District for ESCO to Provide the Work. 56. Proposed Change Order (PCO): A document prepared by the District requesting @ quotation of cost or time from ESCO for additions, deletions or revisions in the Work initiated by the District. 57. Provide: Furnish and Install or Supply and Install complete in place at the Facilities. Whenever the word or term “provide,” “to be provided,” “provision,” or similar phrase is used in the Contract Documents, in regards to any and ail items or things or any part of the Project to be provided under the Contract Documents by ESCO, this word or these phrases shall mean that ESCO shall perform all tasks and take all steps necessary to provide the Project, such item or thing, new, complete, and in satisfactory operating condition, at no additional cost to the San Francisco Unified School District and without any change in the Project Cost. In this regard, the above-referenced word, term or phrase shall be interpreted to include, but shall not be limited to, all design, re-design, engineering, re- engineering, coordinating, drafting, programming, administration, supervision, monitoring, management, overhead and profit, procurement, shipping and handling, delivery, installation, erection, assembly, construction, adjusting, testing, balancing, connecting, procurement, and/or rental of equipment with the necessary appurtenances, tools, devices, computer hardware and software, provision of labor and materials or any other item necessary to perform all tasks associated with and necessary to the Work, including all remedial and corrective work, and payment of all necessary permits and fees. 4.12.99 00700 - 9 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 58. Regular Working Hours: 7:00 a.m, to 5:00 p.m., Monday through Friday, except District legal holidays; however, the Parties recognize that the Project will be performed at schoo! Sites where classes will be in session. It shail be the responsibility of ESCO to schedule performance of all Work during hours so that classes will not be disturbed by the performance of the Work. If the school Principal at any of the Premises determines that performance of the Work is disturbing class(es), ESCO shall discontinue Performance of that Work immediately and shall reschedule the performance of that Work to a time when it will not disturb class(es), without adjustment to the Contract Time or Project Cost. 59. Request for Information (RFI): A document prepared by ESCO or the District requesting information from one of the Parties regarding the Project or Contract Documents. 60. Required: In accordance with the requirements of one or more of the Contract Documents. 61. Site: A school where Work is to be performed. 62. Special Conditions: Document 00823. 63. Specifications: The written portion of the Construction Documents required to be prepared by ESCO and approved by the District. The Specifications shall be organized into a format acceptable to the District and regulatory agencies with jurisdiction over the Project, and shall provide the requirements and technical descriptions of materials, equipment, systems, standards and workmanship for the Work, and performance of related administrative services. 64. Specified: Called for or required by the Contract Documents. 65. Subconsultant: A person orentity that has a direct contract with ESCO to provide professional services, such as design and/or construction administration services for the Project. 66. Subcontractor: A person or entity who has a direct contract with ESCO to perform a portion of the Work at the Facilities, The term “Subcontractor” is referred to throughout the Contract Documents as if singular in number and neuter in gender and means a Subcontractor or an authorized agent or representative of the Subcontractor. The term "Subcontractor does not include a separate contractor or subcontractors of a separate contractor. The term “Subcontractor” shall also include contracts assigned to ESCO by the District. 67. Substantial Completion and Substantially Complete: The stage in the progress of the Work when the Work is sufficiently complete in accordance with the Contract Documents so that the Work can be utilized for the Purposes for which it is intended. 68. Supplementary Conditions: The part of the Contract Documents that amends, modifies, or supplements these General Conditions. The Supplementary Conditions include Documents 00801, 00802, 00805, 00810, 00811 and 00822 as listed in the Table of Contents (Document 00010). Refer also to “Document”. 4.12.99 00700 - 10 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT 69. Supplier: A manufacturer, fabricator, distributor, or vendor having a direct contract with ESCO or with a Subcontractor to furnish materials or equipment to be incorporated in the Work. 70. Supply: Refer to “Furnish.” 71. Team: The essential personnel on ESCO's team identified in writing by ESCO and approved by the District prior to execution of the Agreement. ESCO and its Subcontractors and Subconsultants agree that said individuals will not be transferred or removed from the Project without the prior written permission or direction of the District, which will not be unreasonably withheld. ESCO shall replace essential personnel where necessary with individuals acceptable to the District. 72. Testing Agencies: An independent entity engaged by the District or ESCO, as specified in the Contract Documents, to perform specific inspections or tests, either at the Facilities or elsewhere, and to report on and, if required, to interpret results of those inspections or tests. 73. Unavoidabie Delay: Refer to Paragraph 8.02. 74. Unilateral Change Order: A written Change Order to ESCO by the District issued after the Effective Date of the Agreement in accordance with Paragraph 7.03. 75. Unknown or Differing Conditions: As defined in Document 00811. 76. Work: The performance by ESCO of ail its responsibilities and obligations set forth in the Contract Documents. Work shall include, but not be limited to, Providing all labor, materials, equipment, design services, and documentation required by the Contract Documents for the design and construction of the Project. References in the Contract Documents to “Work” may be to items of Work. 1.04 MEANING AND INTENT OF THE CONTRACT DOCUMENTS A. 4.12.39 The Contract Documents will be construed in accordance with the laws of the State of California and applicable building codes and statutes of the City and County of San Francisco. The intent of the Contract Documents is to make ESCO responsible to Provide for a functionally complete and operational Project, well-suited for its intended purpose, to be designed and constructed in accordance with the Contract Documents. All Work, materials, and equipment necessary to properly execute and complete the Work and fulfill the intent of the Contract Documents shall be provided by ESCO with no change in the Project Cost or Contract Time. In interpreting the Contract Documents, words describing materials or Work with a well-known technical or trade meaning, unless otherwise specifically defined in the Contract Documents, shail be construed in accordance with such well-known meaning. In the event of conflict in the Contract Documents regarding the quality of a product, ESCO shail request Clarification from the District as provided in Paragraph 1.05 before procuring said product or proceeding with the Work affected thereby. 00700 - 11 General Conditions ENERGY SERVICE AGREEMENTSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT —. In the interest of brevity, the Contract Documents frequently omit modifying words such as “all” and “any” and articles such as "the" and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. F. When there is a conflict between existing on-Site conditions and information indicated in the Contract Documents, other than Unforeseen or Differing Conditions as defined in Document 00811, the existing condition shall govern. ESCO shall perform the Work and adjust to the existing condition at no change in the Project Cost and no adjustment in the Contract Time. 41.05 INTERPRETATIONS OF CONTRACT DOCUMENTS A. Should questions arise as to the meaning or intent of the Contract Documents, or should the District's comments on submittals returned to ESCO appear to ESCO to change the requirements or scope of the Contract Documents, ESCO shall submit a Request for Information (RFI) to the District promptly in accordance with the General Requirements. ESCO shall coordinate and schedule its Work to provide the District sufficient time to issue a written reply before proceeding with Work affected thereby. B. The District's RFI reply, which may include written Clarifications as deemed by the District to be necessary and consistent with the Contract Documents, will be issued within 15 days of receipt of the RFI, or longer with written notification of additional time required to ESCO. if ESCO believes such Clarifications exceed the requirements of the Contract Documents, ESCO may submit a Change Order Request as provided in Paragraph 4.01. C. All references in the Contract Documents to satisfactory, sufficient, reasonable, acceptable, suitable, proper, correct, or adjectives of like effect shall be construed to describe an action or determination of the District Representative for the sole purpose of evaluating the completed Work for compliance with the requirements of the Contract Documents and conformance with the intent as expressed in subparagraph 1.04B. Subject to the provisions of Article 4 and Paragraph 14.03 herein, the foregoing described determinations of the District Representative shall be final and conclusive. 1.06 MODIFICATION OF CONTRACT DOCUMENTS A. The Contract Documents may be amended after execution of the Agreement to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: (i) a Change Order; or (ii) a Unilateral Change Order. B. In addition, the requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the following ways: (i) a Field Order; (ii) a Clarification, written interpretation or other written instruction issued by the District; or (iii) the District's review and acceptance of shop drawing or sample in accordance with Paragraph 2.05. 1.07 PRECEDENCE OF DOCUMENTS A. Inthe case of discrepancy or ambiguity in the Contract Documents, the following order of precedence shalt prevail (listed in order of highest to lowest precedence): 4.12.99 00700 - 12 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 5. Modifications in inverse chronological order, and in same order as specific portions they are modifying. Executed Agreement. General Conditions. Supplementary Conditions. Special Conditions. ARTICLE 2 - DISTRICT'S RESPONSIBILITIES AND RIGHTS 2.01 ASSIST IN OBTAINING APPROVALS The District will provide assistance in filing documents as required to obtain necessary approvals of governmental authorities having jurisdiction over the Project. 2.02 RIGHT TO STOP THE WORK A. The District may order ESCO to stop the Work, or a portion thereof, until the cause for such order has been eliminated. Any such order to stop the Work shall be in writing and shall be signed by the District Representative unless otherwise agreed to by the District, the Contract Time will not be extended as a result of an order to stop the Work. B. However, the right of the District to stop the Work shall not give rise to a duty on the part of the District to exercise this right for the benefit of ESCO or other person or entity. C. Reasons for ordering ESCO to stop the Work include, but are not limited to, the following: 1. 4.12.99 ESCO fails to correct Work which is not in accordance with the material requirements of the Contract Documents; or ESCO fails to carry out Work in accordance with the material requirements of the Contract Documents; or ESCO disregards the authority of the authorized District Representative; or ESCO disregards the laws, regulations or orders of a public body having jurisdiction over the Project; or ESCO violates any material provision of the Contract Documents; or ESCO fails to maintain current certificates of insurance on file with the District; or ESCO is proceeding with original Contract Work, which will be modified by a pending Change Order. 00700 - 13 General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT 2.03 RIGHT TO CARRY OUT THE WORK A. In the event that ESCO fails to carry out the Work in accordance with the Contract Documents and fails to promptly correct or prosecute the Work within a 14-day period following a written notice of a deficiency from the District, or other such period as may be specified by the District in its written notice, the District may, without prejudice to other remedies the District may have, correct such deficiencies; however, where issues of health or safety are involved, ESCO shall correct such deficiencies in such shorter period of time as the District determines is prudent or necessary or the District may correct the deficiencies, B. In such case, the District will deduct all costs of such corrections, including the costs of District staff and consultants, from the Project Cost. 2.04 NO WAIVER OF RIGHTS A. None of the following shall operate as a waiver of any provision of the Contract Documents or of any power herein reserved by the District or any right to damages herein provided: 1. inspection by the District or its authorized agents or representatives; or 2. any order for, or acceptance of, the whole or any part of the Work by the District; or 3. any extension of time; or 4. any position taken by the District or its authorized agents or representatives. B. No waiver of any breach of any provision of the Contract Documents shall be held to be a waiver of any other or subsequent breach. The only waiver by the District shail be a waiver in writing that explicitly states the item or right being waived. C. All remedies provided in the Contract Documents shall be taken and construed as cumulative; that is, in addition to each and every other remedy herein provided, the District shall have any and all equitable and legal remedies which it would in any case have. 2.05 OVERSIGHT OF THE CONTRACT A. The District's involvement and oversight of the Agreement is described in the Contract Documents. B. The District Representative will be designated in writing and will have limited authority to act on behalf of the District. The District may at any time during the performance of the Work make changes in the authority of any representative or may designate additional representatives in accordance with the District's Board’s policies and regulations. These changes will be communicated to ESCO in writing. ESCO assumes all risks and consequences of performing Work pursuant to any order, including but not limited to instruction, direction, interpretation or determination, of anyone not authorized to issue such order. 4.12.99 00700 - 14 ~ General ConditionsSAN FRANCISCO UNIFIED SCHOOL DISTRICT ENERGY SERVICE AGREEMENT C. The review, approval, or other action taken by the District upon ESCO's submittals such as drawings, plans, specifications, shop drawings, product data, samples and other submittals, shall apply to general design concepts only, and shall in no way relieve ESCO from its responsibility to compiete a fully functional and operational Project, nor from providing all labor, equipment, and materiais in accordance with the requirements of the Contract Documents necessary for the Proper execution of the Work. The District's action will be taken with such reasonable Promptness provided that the District shall be provided a reasonable time, as set forth in the General Requirements, to permit adequate review. Approval of submittals shall not affect the Project Cost, and additional costs that may result therefrom shall be ESCO’s sole obligation. ESCO shall be responsible to provide