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13-023 G Bortolotto & Company Agreement for Minor Asphalt Improvements (FY 12/13) \ / OFFICE OF THE CITY CL.ERK �• CITY HALL 10300 TORRE AVENUE •CUPERTINO, CA 95014-3255 TELEPHONE: (408) 777-3223• FAX: (408) 777-3366 WEBSITE:www.cupertino.org CUPERTINO March 12, 2013 G. Bortolotto & Company 582 Bragato Road San Carlos, CA 94070-6227 An original copy of your Agreement with the City of Cupertino is enclosed. If you have any questions or need additional information, please contact the Public Works department at (408) 777-3354. Sincerely, I Brittany C.rey 4 Senior Office As' •.tant City of Cupertino Enclosure cc: Public Works AGREEMENT BETWEEN THE CITY OF CUPERTINO AND FOR MINOR ASPHALT IMPROVEMENTS (FY12/13) THIS AGREEMENT, for reference dated March 1, 2013, is by and between CITY OF CUPERTINO, a municipal corporation (hereinafter referred to as "City"), and G, Bortolotto & Comp a California corporation, whose address is 582 Bragato Road, San Carlos, CA 94070-6227 hereinafter called the Contractor, and is made with reference to the following: RECITALS: A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the Constitution and the statutes of the State of California and the Cupertino Municipal Code. B. City and Contractor desire to enter into an agreement for minor asphalt improvements in accordance with the Special Provisions and Technical Specifications (Exhibit A) dated January 30, 2013. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM: The Contractor shall begin work within ten (10) working days after receiving notice from the Engineer to commence the work, and shall diligently prosecute the work to completion before the expiration of twenty (20) consecutive working days from the date of receipt of notice to begin work. 2. SERVICES TO BE PERFORMED: Contractor agrees, at its own cost and expense, to furnish all labor, tools, equipment, materials, except as otherwise specified, and to do all work strictly in accordance with Special Conditions and Technical Specifications (Exhibit A) dated January 30, 2013 hereby referred to and expressly made a part hereof with the same force and effect as if the same were fully incorporated herein. 3. COMPENSATION TO CONTRACTOR: Contractor shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Contractor's proposal, which is attached hereto as Exhibit "B" and incorporated herein by this reference. Payment will be made in the same manner that claims of a like character are paid by the City, with checks drawn on the treasury of the City, to be taken 1 from the general fund. Payment will be made by the City in the following manner: On the first day of each month, Contractor shall submit a written estimate of the total amount of work done the previous month. Payment shall be made for 90% of the value of the work. The City shall retain 10% of the value of the work as partial security for the completion of the work by Contractor. Retained amounts shall be paid to Contractor within thirty five (35) days of acceptance by the City of the project. Payment shall not be construed as acceptance of defective work. No interest will be paid to Contractor on retained funds. 4. TIME IS OF THE ESSENCE: Contractor and City agree that time is of the essence regarding the performance of this Agreement. It is agreed by the parties to the Agreement that in case all the work called for under the Agreement is not completed before or upon the expiration of the time limit as set forth in paragraph 1 above, damage will be sustained by the City, and that it is and will be impracticable to determine the actual damage which the City will sustain in the event of and by reason of such delay. It is therefore agreed that the Contractor will pay to the City the sum of One Hundred Dollars ($100)per day for each and every day's delay beyond the time prescribed to complete the work; and the Contractor agrees to pay such liquidated damages as herein provided, and in case the same are not paid, agrees that the City may deduct the amount thereof from any money due or that may become due the Contractor under the Agreement. It is further agreed that in case the work called for under the Agreement is not finished and completed in all parts and requirements within the time specified, the City shall have the right to extend the time for completion or not, as may seem best to serve the interest of the City; and if it decides to extend the time limit for the completion of the Agreement, it shall further have the right to charge the Contractor, his or her heirs, assigns, or sureties, and to deduct from the final payment for the work, all or any part, as it may deem proper, of the actual costs and overhead expenses which are directly chargeable to the Agreement, and which accrue during the period of such extensions. The Contractor shall not be assessed with liquidated damages during any delay in the completion of the work caused by an act of God or of the public enemy, acts of the City, fire, flood, epidemic, quarantine restriction, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes; provided that the Contractor shall, within one (1) day from the beginning of such delay, notify the City in writing of the causes of delay. The City shall ascertain the facts and the extent of the delay, and its findings of the facts thereon shall be final and conclusive. 5. STANDARD OF CARE: Contractor agrees to perform all services hereunder in a manner commensurate with the prevailing standards of like professionals in the San Francisco Bay Area and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with City. 2 6. INDEPENDENT PARTIES: City and Contractor intend that the relationship between them created by this Agreement is that of employer-independent contractor. The manner and means of conducting the work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment will be acquired by virtue of Contractor's services. None of the benefits provided by City to its employees, including but not limited to unemployment insurance, workers' compensation plans, vacation and sick leave are available from. City to Contractor, its employees or agents. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments, or other purposes normally associated with an employer-employee relationship from any fees due Contractor. Payments of the above items, if required, are the responsibility of Contractor. 7. IMMIGRATION REFORM AND CONTROL ACT (IRCA): Contractor assumes any and all responsibility for verifying the identity and employment authorization of all of its employees performing work hereunder, pursuant to all applicable IRCA or other federal, or state rules and regulations. Contractor shall indemnify and hold City harmless from and against any loss, damage, liability, costs or expenses arising from any noncompliance of this provision by Contractor. 8. NON-DISCRIMINATION: Consistent with City's policy that harassment and discrimination are unacceptable employer/employee conduct, Contractor agrees that harassment or discrimination directed toward a job applicant, a City employee, or a citizen by Contractor or Contractor's employee on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Contractor agrees that any and all violations of this provision shall constitute a material breach of this Agreement. 9. HOLD HARMLESS: Contractor shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless the City and its officers, officials, agents, employees and volunteers against any and all liability, claims, stop notices, actions, causes of action or demands whatsoever from and against any of them, including any injury to or death of any person or damage to property or other liability of any nature, arising out of, pertaining to, or related to the performance of this Agreement by Contractor or Contractor's employees, officers, officials, agents or independent contractors. Contractor shall not be obligated under this Agreement to indemnify City to the extent that the damage is caused by the sole negligence or willful misconduct of City, its agents or employees. Such costs and expenses shall include reasonable attorneys' fees of counsel of City's choice, expert fees and all other costs and fees of litigation. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth here in these sections from each and every subcontractor or any other person or entity involved by, for, with, or on behalf of Contractor in the performance of this agreement. If 3 Contractor fails to obtain such indemnity obligations from others as required here, Contractor agrees to be fully responsible according to the terms of this section. 10. INSURANCE: On or before the commencement of the terms of this Agreement, Contractor shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insurance coverage in compliance with paragraphs 10A, B, C and D. Such certificates, which do not limit Contractor's indemnification, shall also contain substantially the following statement: "Should any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, the insurer affording coverage shall provide thirty (30) days' advance written notice to the City of Cupertino by certified mail, "Attention: Assistant Director of Public Works." It is agreed that Contractor shall maintain in force at all times during the performance of this Agreement all appropriate coverage of insurance required by this Agreement with an insurance company that is acceptable to City and licensed to do insurance business in the State of California. Endorsements naming the City as additional insured shall be submitted with the insurance certificates. A. COVERAGE: Contractor shall maintain the following insurance coverage: (1) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Commercial general liability coverage in the following minimum limits: Bodily Injury: $1,000,000 each occurrence $2,000,000 aggregate - all other Property Damage: $500,000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $2,000,000 will be considered equivalent to the required minimum limits shown above. (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Bodily injury: $500,000 each occurrence Property Damage: $500,000 each occurrence or Combined Single Limit: $1,000,000 each occurrence B. SUBROGATION WAIVER: Contractor agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, Contractor shall look solely to its insurance for recovery. Contractor hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Contractor or City 4 with respect to the services of Contractor herein, a waiver of any right to subrogation which any such insurer of said Contractor may acquire against City by virtue of the payment of any loss under such insurance. C. FAILURE TO SECURE: If Contractor at any time during the term hereof should fail to secure or maintain the foregoing insurance, City shall be permitted to obtain such insurance in the Contractor's name or as an agent of the Contractor and shall be compensated by the Contractor for the costs of the insurance premiums at the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. ADDITIONAL INSURED: City, its City Council, boards and commissions, officers, employees, and volunteers shall be named as an additional insured under all insurance coverages, except worker' s compensation insurance. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. SUFFICIENCY OF INSURANCE: The insurance limits required by City are not represented as being sufficient to protect Contractor. Contractor is advised to consult Contractor's insurance broker to determine adequate coverage for Contractor. 11. BONDS: Contractor shall furnish the following bonds from a bonding company acceptable to the City Attorney: A. Faithful Performance: A bond in the amount of 100% of the total contract price guaranteeing the faithful performance of this contract, and B. Labor and Materials: A bond for labor and materials in the amount of 100% of the total contract price. 12. PROHIBITION AGAINST TRANSFERS: Contractor shall not assign, sublease, hypothecate, or transfer this Agreement, or any interest therein, directly or indirectly, by operation of law or otherwise, without prior written consent of City. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. However, claims for money by Contractor from City under this Agreement may be assigned to a bank, trust company or other financial institution without prior written consent. Written notice of such assignment shall be promptly furnished to City by Contractor. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Contractor, or of the interest of any general partner or joint venturer or syndicate member or cotenant, if Contractor is a partnership or joint venture or syndicate or cotenancy, 5 which shall result in changing the control of Contractor, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power of the corporation. 13. SUBCONTRACTOR APPROVAL: Unless prior written consent from City is obtained, only those people and subcontractors whose names are listed in Contractor's proposal shall be used in the performance of this Agreement. Requests for additional subcontracting shall be submitted in writing, describing the scope of work to be subcontracted and the name of the proposed subcontractor. Such request shall set forth the total price or hourly rates used in preparing estimated costs for the subcontractor's services. Approval of the subcontractor may, at the option of City, be issued in the form of a Work Order. In the event that Contractor employs subcontractors, such subcontractors shall be required to furnish proof of workers' compensation insurance and shall also be required to carry general and automobile liability insurance in reasonable conformity to the insurance carried by Contractor. In addition, any work or services subcontracted hereunder shall be subject to each provision of this Agreement. 14. PERMITS AND LICENSES: Contractor, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses, including a City Business License, that may be required in connection with the performance of services hereunder. 15. REPORTS: Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Contractor pursuant to or in connection with this Agreement shall be the exclusive property of City. Consultant may retain a copy of any report furnished to the City pursuant to this Agreement. No report, information nor other data given to or prepared or assembled by Contractor pursuant to this Agreement shall be made available to any individual or organization by Contractor without prior approval by City. Contractor shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. RECORDS: Contractor shall maintain complete and accurate records with respect to sales, costs, expenses, receipts and other such information required by City that relate to the performance of services under this Agreement. Contractor shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Contractor shall provide free access to such books and records to the representatives of City or its designees at all proper times, and gives City the right to examine and audit same, and to make 6 transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. If supplemental examination or audit of the records is necessary due to concerns raised by City's preliminary examination or audit of records, and the City's supplemental examination or audit of the records discloses a failure to adhere to appropriate internal financial controls, or other breach of contract or failure to act in good faith, then Contractor shall reimburse City for all reasonable costs and expenses associated with the supplemental examination or audit. 17. NOTICES: All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States Mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests, or approvals from Contractor to City shall be addressed to City at: City of Cupertino 10555 Mary Avenue Cupertino CA 95014 Attention: Roger Lee, Assistant Director of Public Works All notices, demands, requests, or approvals from City to Contractor shall be addressed to Contractor at: G. Bortolotto & Company, Inc. 582 Bragato Road San Carlos, CA 94070-6227 18. REQUIREMENT TO PAY PREVAILING WAGES Consistent with the City's policy to pay prevailing wage rates, Contractor shall comply with the City's Labor Compliance Program and all other requirements set forth in Labor Code section 1770 et seq. The City shall require payment of the general rate of per diem wages or the general rate of per diem wages for holiday and overtime work. Contractor will submit (monthly or biweekly) certified payroll records to the City for all employees and subcontractors in a preapproved format or a City provided form. Any delay in remitting certified payroll reports to the City upon request from the City will result in either delay and/or forfeit of outstanding payment to Contractor. 19. SAFETY REQUIREMENT All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL-OSHA. City reserves the right to issue restraints or cease and desist orders to Contractor when unsafe or harmful acts or conditions are observed or reported relative to the performance of the work under this Agreement. 7 Contractor shall maintain the work sites free of hazards to persons and/or property resulting from his or her operations. Any hazardous condition noted by Contractor, which is not a result of his or her operations, shall immediately be reported to City. Care must be taken to the traveling public and pedestrians at all times. The Manual on Uniform Traffic Control Devices (MUTCD) is to be applied at all times. 20. HOURS OF OPERATION Contractor shall be allowed to operate only for the hours of 8 a.m. to 5 p.m. unless prior written approval has been secured from City to do otherwise. 21. NONDISCRIMINATION Contractor certifies and agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, ancestry, sex, age, or condition or physical or mental handicap (as defined in 41 C.F.R. Section 60-741, et. seq.), in accordance with requirement of state or federal law. Contractor shall take affirmative action to ensure that qualified applicants are employed and that employees are treated during employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap in accordance with requirements of state and federal law. Such shall include, but not be limited to, the following: A. Employment upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation. B. Selection for training, including interns and apprentices. Contractor agrees to post in conspicuous places in each of Contractor's facilities providing services hereunder, available and open to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. Contractor shall, in all solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirements of state and federal law. Contractor shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' representative of Contractor's commitments under this paragraph. Contractor certifies and agrees that it will deal with its subcontractors, proposalders, or vendors without regard to race, color, religion, national origin, ancestry, sex, age, or condition of physical or mental handicap, in accordance with requirement of state and federal law. In accordance with applicable state and federal law, Contractor shall allow duly authorized county, state and federal representatives access to its employment records during regular business hours in order to verify compliance with the anti-discrimination provisions of this paragraph. Contractor shall provide such other information and records as such representatives may require in order to verify compliance with the anti-discrimination provisions of this paragraph. 8 If the City finds that any of the provisions of this paragraph have been violated, the same shall constitute a material breach of Agreement upon which City may determine to cancel, terminate, or suspend this Agreement. City reserves the right to determine independently that the anti-discrimination provisions of this Agreement have been violated. In addition, a determination by the California Fair Employment Practices Commission or the Federal Equal Employment Opportunity Commission that Contractor has violated state and federal anti- discrimination laws shall constitute a finding by City that Contractor has violated the anti- discrimination provisions of Agreement. The parties agree that in the event Contractor violates any of the anti-discrimination provisions of this paragraph, City shall be entitled, at its option, to the sum of$500.00 pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating, or suspending this Agreement. Contractor hereby agrees that it will comply with Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. Section 794), all requirements imposed by the applicable regulations (45 C.F.R.), and all guidelines and interpretations issued pursuant thereto, to the end that no qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity of Contractor receiving Federal Financial Assistance. In addition, Contractor shall comply with the Uniform Federal Accessibility Standards, and Contractor, Engineer, or Architect responsible for any design, construction or alteration shall certify compliance with those Standards. Contractor's attention is directed to laws, including but not limited to: A. CIVIL RIGHTS/EQUAL OPPORTUNITY (1) Civil Rights Act of 1964. Under Title VII of the Civil Rights Act of 1964, no person shall, on the grounds of race, sex, religion, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. (2) Section 109 of the Housing and Community Development Act of 1974. No person in the United States shall, on the grounds of race, color, national origin, or sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act. B. PROGRAM ACCESSIBILITY FOR INDIVIDUALS WITH DISABILITIES This Agreement is subject to laws and regulations concerning the rights of otherwise qualified individuals with handicaps for equal participation in, and benefit from federally assisted programs and activities, including but not limited to: (1) Americans with Disabilities Act of 1990 (ADA) (28 C.F.R. 35). Title II, 9 Subpart A of the Americans with Disabilities Act of 1990 applies to all publicly funded activities and programs. Contractor shall also comply with the public accommodations requirements of Title III of the ADA, as applicable. (2) Nondiscrimination on the Basis of Handicap (24 CFR 8). These regulations, which implement Section 504 of the Rehabilitation Act of 1973, as amended, and as cited in Section 109 of the Housing and Community Development Act, apply to all federally assisted activities and programs and are implemented through the regulations at 24 C.F.R. 8. (3) Architectural Barrier Act of 1968. Any building or facility, excluding privately owned residential structures, designed, constructed, or altered with federal funds, shall comply with the Uniform Federal Accessibility Standards, 1984 (41 C.F.R. 3) and the Handicapped Accessibility Requirements of the State of California Title 24. The Consultant, Engineer or Architect responsible for such design, construction or alteration shall certify compliance with the above standards. (4) In resolving any conflict between the accessibility standards cited in paragraphs(1), (2) and (3) above, the more stringent standard shall apply. 22. URBAN RUNOFF MANAGEMENT: The Contractor shall avoid creating excess dust when breaking asphalt or concrete and during excavation and grading. If water is used for dust control, contractor shall use as little as necessary. Contractor shall take all steps necessary to keep wash water out of the streets, gutters and storm drains. The Contractor shall develop and implement erosion and sediment control to prevent pollution of storm drains. Such control includes but is not limited to: A. Use storm drain inlet protection devices such as sand bag barriers, filter fabric fences, block and gravel filters. (Block storm drain inlets prior to the start of the rainy season (October 15), in site de-watering activities and saw-cutting activities; shovel or vacuum saw-cut slurry and remove from the site). B. Cover exposed piles of soil or construction material with plastic sheeting. All construction materials must be stored in containers. C. Sweep and remove all materials from paved surfaces that drain to streets, gutters and storm drains prior to rain as well as at the end of the each work day. At the completion of the project, the street shall be washed and the wash water shall be collected and disposed of offsite in an appropriate location. D. After breaking old pavement, Contractor shall remove all debris to avoid contact with rainfall or runoff. E. Contractor shall maintain a clean work area by removing trash, litter, and debris at the end of each work day. Contractor shall also clean up any leaks, drips, and other spills as they occur. The objective is to ensure that the City and County of Santa Clara County-Wide Clean Water Program is adequately enforced. These controls should be implemented prior to the start of construction, up-graded as required, maintained during construction phases to provide adequate protection, and removed at the end of construction. These recommendations are intended to be used in conjunction with the States Best Management Practices Municipal and Construction Handbooks, local program guidance 10 materials from municipalities, Section 7.1.0:1 of the Standard Specifications and any other appropriate documents on storm water quality controls for construction. Failure to comply with this program will result in the issuance of noncompliance notices, citations, project stop orders or fines. The fine for noncompliance of the above program is two hundred and fifty dollars ($250.00) per occurrence per day. The State under the Federal Clean Water Act can also impose a fine on the contractor, pursuant to Cal. Water Code ' 13385. 22. TERMINATION: In the event Contractor fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Contractor shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days after receipt by Contractor from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Contractor written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days'prior written notice to Contractor as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 23. COMPLIANCES: Contractor shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 24. CONFLICT OF LAW: This Agreement shall be interpreted under, and enforced by the laws of the State of California excepting any choice of law rules which may direct the application of laws of another jurisdiction. The Agreement and obligations of the parties are subject to all valid laws, orders, rules, and regulations of the authorities having jurisdiction over this Agreement (or the successors of those authorities.) Any suits brought pursuant to this Agreement shall be filed with the courts of the County of Santa Clara, State of California. 25. ADVERTISEMENT: Contractor shall not post, exhibit, display or allow to be posted, exhibited, displayed any signs, advertising, show bills, lithographs, posters or cards of any kind pertaining to the services performed under this Agreement unless prior written approval has been secured from City to do otherwise. 26. WAIVER: A waiver by City of any breach of any term, covenant, or condition contained herein, shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of the same or a different character. 11 27. INTEGRATED CONTRACT: p � �� / (14:a. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both City and Contractor. 28. INSERTED PROVISIONS: Each provision and clause required by law to be inserted into the Agreement shall be deemed to be enacted herein, and the Agreement shall be read and enforced as though each were included herein. If through mistake or otherwise, any such provision is not inserted or is not correctly inserted, the Agreement shall be amended to make such insertion on application by either party. 29. CAPTIONS: The captions in this Agreement are for convenience only, are not a part of the Agreement and in no way affect, limit or amplify the terms or provisions of this Agreement. IN WITNESS WHEREOF, the parties have caused the Agreement to be executed on the day and year first above written. CONTRACTOR C][TY OF CUPERTINO G. Bortolotto & Company, Inc. A Municipal Corporation By �(�T B:✓ Title ' reS�cle i Title c r��izK v f.Ir l J:r�5 Date _4—t `3 Date '�/57 13 RECOMME %'' I FOR , PP' •VAL: By F // Title „d ,�- .+� - d� a xes APPROVED AS TO FORM: hi Bye LL!/I/ _ City Attorney ATTEST: A CityClerk 12 s-ac ° tt. 77 ( 03 , oc 6-e/31-71;S EXHIBIT"A" SPECIAL CONDITIONS 1. LOCATIONS The project is located at various locations in the City of Cupertino, County of Santa Clara. Exhibit"C"is a city-wide site plan of locations. 2. SCOPE OF WORK The work to be performed under this contract i,s to provide all labor, materials,tools and equipment necessary for removal and replacement of failed asphalt, leveling of asphalt, installation of speed bumps and adjustment of manholes as identified in this Exhibit A and Exhibit C. The scope of work includes all labor,materials and similar resources necessary to complete the work,including but not limited to such items as flagmen, necessary resources to comply with all safety requirements,work and materials required to provide public convenience and public safety during the Project, disposal, utility coordination,barricades, lights,pedestrian walkways, and repair of damage to private property. Contractor shall ensure that a foreman or lead worker is on the job at all times while work is being performed, and that the foreman or lead speaks and reads English sufficiently to comprehend required instructions. All work shall be performed in accordance with the latest edition City of Cupertino Standard Details and Standard Plans and Standards Specifications of the State of California, Department of Transportation. Should a conflict arise between the contract documents and the other referenced standards these special conditions and technical specifications shall govern, followed in order by the City of Cupertino Standard Details,then the State of California, Department of Transportation Standards. 3. ESTIMATED QUANTITIES Item Description Est. Qty. Unit 1 Removal/Replacement of Failed Asphalt 325 Tons 2 Asphalt Leveling 25 Square Yard 3 Asphalt Speed Bump 4 Each 4 Adjust Manhole 2 Each 4. ALLOWABLE QUANTITY VARIATIONS Increases or decreases in the quantity of unit price items will be determined by comparing the actual pay quantity of an item of Work with the approximate quantity in the listing of the proposal items contained in Exhibit B (Schedule of Proposal Prices). Minor Asphalt Improvements (FY12/13) J January 30,2013 If the actual pay quantity of an item of work varies from the approximate quantity by 25 percent or less,payment will be made for the actual quantity of work performed at the agreement unit price listed in Exhibit B (Proposal). 5. EXPLANATION OF PROPOSAL ITEMS The price proposal per unit measure of work shall include all costs of labor, equipment, incidentals,and materials necessary to complete the work specified in this agreement and in accordance with these special conditions and technical specifications. Any item shown on the details or described in these provisions and not specifically listed as a proposal item shall be considered as included in the various proposal items and no special compensation will be allowed. 6. COMPLETION OF PAVING OF EXCAVATED AREAS AND DAMAGES Removal and replacement of each area of failed asphalt identified in Item no.1 shall be completed within 48 hours of the initial removal of failed asphalt. Open excavations beyond this time period increases the amount of inconvenience sustained by the motoring public and the City,and that it is and will be impracticable to determine the actual damage which the City will sustain in the event of and by reason of such delay. It is therefore agreed that the Contractor will pay to the City the sum of Five Hundred Dollars($500)per day for each and every day's delay beyond the 48 hour limit, for each excavated area that remains unpaved and lower than .10 feet below surrounding grade. Time begins upon initial removal. This amount of liquidated damage shall be deducted by the City from monies due from the Contractor hereunder, or the Contractor's assigned, successors, and sureties shall be liable to the City for any excess. 8. ITEMS AND WORK NOT SPECIFICALLY INCLUDED IN A DESCRIPTION Any and all items and/or work called for in these special conditions and technical specifications, and not included in a description or a specific proposal item, shall be included by the contractor in one(1) or more of the proposal items and no additional compensation will be allowed. Contractor shall not complete any additional work is required to without prior written authorization from the City's project manager. 9. PUBLIC CONVENIENCE AND SAFETY A project schedule and traffic control plan is to be submitted by the contractor prior to the start of work. The City shall review and provide comments as appropriate to the contractor,with Minor Asphalt Improvements(FY12/13) January 30, 2013 any noted deficiencies corrected prior to start of work. The Contractor shall conduct their operations so as to cause the least possible obstruction and inconvenience to public. 11. QUESTIONS Any questions regarding these plans and specifications should be directed to City of Cupertino,Assistant Director of Public Works. Roger Lee, (408) 777-3350. 12. RESPONSIBILITY OF CONTRACTOR The City assumes no responsibility whatsoever for loss or damage of equipment owned or operated by the Contractor,his agents or employees. 13. EQUIPMENT The Contractor must obtain a bulk water meter from various water agencies and pay for water usage(California Water Service and San Jose Water Company). Machines must be properly registered and insured in accordance with California State Motor Vehicle Laws and a copy must be left at the Service Center. Minor Asphalt Improvements(FY 12/13) January 30, 2013 TECHNICAL SPECIFICATIONS 1 ASPHALT CONCRETE 1.1.1. Surface Preparation Contractor shall furnish all necessary supervision, labor, materials, construction tools and equipment, supplies,power sweeping, notification of affected residents/businesses,traffic control, utilities and services, transportation, receiving, handling and storage, and removal to complete the work. The Contractor is responsible for preserving manholes, monuments, valve boxes, catch basin grates, etc. 1.1.2. Scope—Removal /Replacement of Failed Asphalt Proposal Item No. 1 Removal / Replacement of Failed Asphalt, will occur at various locations(approximately 20)throughout the City(Exhibit C). This proposal item shall consist of excavating materials, regardless of character and subsurface conditions, in the areas marked in white paint. Removal depth shall generally be five (5) inches removal and replacement. The Engineer shall confirm placement and depths of excavation prior to removal and will confirm finished sub-grade elevations prior to allowing contractor to place asphalt concrete. Aggregate gradation for all asphalt concrete shall be PG 64-10 3/4-inch mix maximum. Locations of failed asphalt have been field marked. Any existing improvements damaged by the Contractor's asphalt removal / replacement operation shall be replaced at the Contractor's sole expense. Failed pavement to be removed may be ground or otherwise broken to the limits marked and to the depth required of the area removed. Areas marked for removal / replacement have widths starting at one foot. The pavement cut encircling the removal / replacement area shall be saw cut or ground full depth. Removal of asphalt concrete and aggregate base shall be performed in such a manner that the edge of the remaining pavement is undisturbed and undamaged. The Contractor shall lawfully dispose of the removed material off the project limits. All grinding materials, where practical, are to be loaded directly in to trucks, stockpiling of materials onsite for any time length is not allowed. Disposal shall be the responsibility of the Contractor and is considered incidental to this proposal item. The location of the disposal site must be approved by the Engineer. Asphalt lift thickness shall conform to Section 39 of the State of California, Department of Transportation Standard Specifications, latest edition. No layer shall be placed over a layer which exceeds 0.25 foot in compacted thickness until the temperature at mid-depth of the layer which exceeds 0.25 foot in compacted thickness is not more than 160 degrees Fahrenheit. All asphalt concrete shall be deposited directly into the excavation from the Minor Asphalt Improvements (FY12/13) January 30, 2013 delivery vehicle and shall be leveled prior to any compaction efforts. All asphalt concrete mixtures shall be placed only when the atmospheric temperature is above 50 degrees Fahrenheit and rising. Pavement removal and construction of asphalt concrete shall be performed with a minimal disruption of parking/pedestrian movement. The Contractor shall compact the existing subgrade of deep lift asphalt removal / replacement area to 90% relative compaction. Compaction of soil subgrade in asphalt removal /replacement areas is considered incidental to this proposal item. Spreading and compacting equipment shall conform to Section 39-5, SPREADING AND COMPACTING EQUIPMENT, of the State of California, Department of Transportation Standard Specifications, latest edition, except as noted herein. Any pavement striping or markings disturbed by this proposal item will be replaced by the City. Prior to starting removal or replacement of asphalt, the Contractor shall submit to the Engineer, the equipment manufacturers specifications for each piece of equipment used on the project. 1.1.3. Scope—Asphalt Leveling Proposal Item No. 2 Asphalt Leveling, will occur at various locations (approximately 2) throughout the City as indicated in Exhibit"C". This proposal item shall consist of thoroughly cleaning and preparing the existing asphalt surface, as outlined in the field, to receive an asphalt leveling course. The thickness of the asphalt leveling course will vary and may be up to two inches in depth. The Engineer shall confirm placement elevations prior to allowing contractor to place asphalt concrete. Aggregate gradation for leveling shall be PG 64-10 1/4-inch mix maximum. Locations of leveling asphalt have been field marked. Any existing improvements damaged by the Contractor's asphalt leveling operation shall be replaced at the Contractor's sole expense. Existing asphalt to be leveled shall be tacked with SS-lh oil prior to placing of asphalt. Any pavement striping or markings disturbed by this proposal item will be replaced by the City. Asphalt leveling shall be performed with a minimal disruption of parking/pedestrian movement. Minor Asphalt Improvements (FY12/13) January 30,2013 1.1.4. Scope—Asphalt Speed Bumps Proposal Item No. 3 Asphalt Speed Bumps, will occur on Westlynn Drive and Santa Teresa Drive. Speed bumps shall be constructed per City of Cupertino Standard Detail 1-17A (Attachment A). Signage and striping will be completed by the City and is not part of this agreement. 1.1.5 Scope-Adjust Manhole Proposal Item No. 4 Adjust Manhole will occur at various locations throughout the City as indicated in Exhibit"C". This proposal item shall consist of removing the existing manhole frame and cover, making adjustment to the ring height and replacing existing manhole frame and cover per City of Cupertino Standard Detail 3-10 (Attachment B). The required concrete ring around the adjusted manhole shall be placed one inch lower than final asphalt grade. 1.1.6 Cumulative Liquidated Damages. Once the pavement is removed in asphalt removal and replacement areas or manhole areas, the Contractor shall diligently prosecute the work so that the deep lift is in place within the same working day. At no time shall there be a drop off greater than .10' (one- tenth of a foot) in the pavement overnight. No unnecessary delays shall be tolerated. By way of ascertaining and fixing the amcunt of damages, and not by way of penalty, the Contractor shall pay the City the sum of Five Hundred Dollars ($500) per calendar day, for each excavated area that remains in,:.:omplete beyond the 48 hour limit. Time begins upon the initial removal. All liquidated damages in this Contract are cumulative. 1.1.7. Submittals: The Contractor shall submit the following prior to beginning work: A. Certificates of compliance for asphalt concrete. B. Certificates of compliance for Portland concrete. 1.1.8. Measurement and Payment: Removal/Replacement of Failed Asphalt concrete Proposal Item No. 1 shall be measured and paid per the theoretical weight, measured in tons. The theoretical weight will be calculated based upon the individual asphalt repair areas marked by the City, multiplied by the depth,multiplied by the weight of asphalt in lb/cubic feet(assume 150 lbs/cubic foot), all divided by 2000. Any and all removal and replacement done outside of the areas marked by the City or to depths greater than 5 inches will be at the expense Minor Asphalt Improvements (FY12/13) January 30,2013 of the Contractor. The contract price paid per ton for Proposal Item No. 1 shall include full compensation for furnishing all labor,materials,tools, equipment and incidentals, and for doing all the work involved to repair the failed pavement including pavement excavation and removal, compaction and grading of sub-grade(if needed), asphalt concrete, fog coat, and tack coat, complete in place. Work shall include saw-cutting and/or grinding of asphalt,removal of asphalt and affected sub-grade, compaction of subgrade and replacement of asphalt as specified herein and as directed by the Engineer. Asphalt Leveling Course Proposal Item No. 2 shall be measured and paid per square yard. The contract price paid per ton for Proposal Item No. 2 shall include full compensation for furnishing all labor,materials,tools, equipment and incidentals, and for doing all the work involved to place an asphalt leveling course, including pavement cleaning, tack coat and asphalt concrete complete in place. Asphalt Speed Bumps Proposal Item No. 3 shall be measured and paid per each speed bump installed. The contract price paid per each speed bump shall include full compensation for furnishing all labor, materials,tools,equipment and incidentals, and for doing all the work involved to construct asphalt speed bumps per City of Cupertino Standard Detail 1-17A including surface preparation and other asphalt placement requirements noted in proposal item no. 1 complete and in place. Adjust Manhole Item No. 4 shall be measured and paid per each manhole adjusted.The contract price paid per manhole adjusted for Proposal Item No. 4 shall include full compensation for furnishing all labor, materials,tools,equipment and incidentals,and for doing all the work involved per City of Cupertino Standard Detail 3-10. Minor Asphalt Improvements(FY12/13) January 30, 2013 EXHIBIT"B" PROPOSAL All Proposal items, including lump sums and unit prices,must be filled in completely. Quote in figures only,unless words are specifically requested. ITEM DESCRIPTION UNIT EST /PER EXTENDED TOTAL QTY UNIT 1 Removal/Replacement of Failed Tons 325 i Asphalt � � tad, 2 `, R 2 Asphalt Leveling SY 25 2-0 5 0 D 3 Asphalt Speed Humps Each 4 - r ;4;'.�, RO 4 Adjust Manhole Each 2 43 S 7 8 ,‘'— ?)„it_ . 4.7- TOTAL PROPOSAL PRICE k, Q Total Proposal Price: sot,1 (Words) ACKNOWLEDGEMENT OF RECEIPT OF ADDENDUMS Contractor herby acknowledges receipt and examination of all Contract Documents and the following Addenda: Addendum No. Addendum Date 1 2-14-13 Contractor proposes and agrees to fully perform the Work within the time stated and in strict accordance with the Contract Documents for the sums of money listed in this Proposal Form. NAME OF CONTRACTOR: G. Bortolotto & Co. , Inc. Licensed in accordance with an act for the registration of Contractors, and with license number: 397341 '!A" Expiration Date: January 31, 2015 California Where incorporated, if applicable Robert Anthony Bortolotto, President/Treasurer Gary Victor Bortolotto, Vice President/Secretary Principals I certify(or declare)under penalty of perjury under the laws of the State of California that the foregoing is true and correct. S gnature of Contractor NOTE: If Contractor is a corporation, set forth the legal name of the corporation,state where incorporated,together with the signature of the officer or officers authorized to sign contracts on behalf of the corporation. If Contractor is a partnership, set forth the name of the firm together with the signature of the partner or partners authorized to sign contracts on behalf of the partnership. Business Address: 582 Bragato Road San Carlos, Ca. 940/0-622/ I E jx . I P # t s + I #t 1 U f . ms._. ._. I _ , _- w N 4 et I i I ""1:). 1 ' .r, ' '/ '..i i , ' ' ' X I 1 I I i!''•3 i i 11 a ,j t • tJJ - { # 7 . -. {t#t 1 Y 1 i j g i , .. 1 I ! - I • • 6 - ' t 4 4 gym;.. „ - E t �` 4 i 3. -',,"'';':41 1 t om! , f ......_.,..,,,_„/ • Bond No: 12089145 Premium: $491.00 DOCUMENT 00610 CONSTRUCTION PERFORMANCE BOND THIS CONSTRUCTION PERFORMANCE BOND ("Bond") is dated February 28,2013, the penal sum of Seventy Thousand One Hundred Three and No/100 [which is one hundred percent of the Contract Price], and is entered into by and between the parties listed below to ensure the faithful performance of the Construction Contract listed below. This Bond consists of this page and the Bond Terms and Conditions,paragraphs 1 through 12, attached to this page. Any singular reference to G. Bortolotto & Company ("Contractor"), The Guarantee Company of North America USA ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California("City")or other party shall be considered plural where applicable. CONTRACTOR: SURETY: G. Bortolotto & Company The Guarantee Company of North America USA Name 582 Bragato Road N 1 Towne Square, Ste 1470 Address Principal Place of Business San Carlos, CA 94070 Southfield, MI 48076 City/State/Zip City/State/Zip CONSTRUCTION CONTRACT: MINOR ASPHALT IMPROVEMENTS(FY12/13) at Cupertino,California. DATED February 28 ,2013 in the Amount of$ 70, 103 . 00 (the"Penal Sum") CONTRACTOR AS PRINCIPAL SURETY The Guarantee Company of North Company: (Corp.Seal) Company: (Corp.Seal) America USA G. Be olott & Company Signature:],-wJ- 1)&Y 9-(1 Signature: (ft4 e and Title: =t ( Name and Title: Mary Baez, Attorney-in-Fact BOND TERMS AND CONDITIONS 1. Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators,successors and assigns to City for the complete and proper performance of the Construction Contract, which is incorporated herein by reference. 2. If Contractor completely and properly performs all of its obligations under the Construction Contract, Surety and Contractor shall have no obligation under this Bond. 3. If there is no City Default,Surety's obligation under this Bond shall arise after: 3.1 City has declared a Contractor Default under the Construction Contract pursuant to the terms of the Construction Contract;and 3.2 City has agreed to pay the Balance of the Contract Sum: 3.2.1 To Surety in accordance with the terns of this Bond and the Construction Contract;or 3.2.2 To a contractor selected to perform the Construction Contract in accordance with the terms of this Bond and the Construction Contract. 00610- 1 Project No.2010-02 4. When City has satisfied the conditions of paragraph 3, Surety shall promptly(within 30 days)and at Surety's expense elect to take one of the following actions: 4.1 Arrange for Contractor, with consent of City, to perform and complete the Construction Contract(but City may withhold consent, in which case the Surety must elect an option described in paragraphs 4.2, 4.3 or 4.4,below);or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; provided, that Surety may not select Contractor as its agent or independent contractor without City's consent;or 4.3 Undertake to perform and complete the Construction Contract by obtaining bids from qualified contractors acceptable to City for a contract for performance and completion of the Construction Contract,and,upon determination by City of the lowest responsible bidder,arrange for a contract to be prepared for execution by City and the contractor selected with City's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract;and,if Surety's obligations defined in paragraph 6,below,exceed the Balance of the Contract Sum,then Surety shall pay to City the amount of such excess;or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, and, after investigation and consultation with City, determine in good faith its monetary obligation to City under paragraph 6,below, for the performance and completion of the Construction Contract and,as soon as practicable after the amount is determined, tender payment therefor to City with full explanation of the payment's calculation. If City accepts Surety's tender under this paragraph 4.4., City may still hold Surety liable for future damages then unknown or unliquidated resulting from the Contractor Default. If City disputes the amount of Surety's tender under this paragraph 4.4,City may exercise all remedies available to it at law to enforce Surety's liability under paragraph 6,below. 5. If Surety does not proceed as provided in paragraph 4,above,then Surety shall be deemed to be in default on this Bond ten days after receipt of an additional written notice from City to Surety demanding that Surety perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available to City at law or under the Construction Contract including,without limitation,and by way of example only,rights to perform work, protect work, mitigate damages, advance critical work to mitigate schedule delay, or coordinate work with other consultants or contractors. 6. Surety's monetary obligation under this Bond is limited by the Amount of this Bond identified herein as the Penal Sum. This monetary obligation shall augment the Balance of the Contract Sum. Subject to these limits, Surety's obligations under this Bond are commensurate with the obligations of Contractor under the Construction Contract. Surety's obligations shall include,but are not limited to: 6.1 The responsibilities of Contractor under the Construction Contract for completion of the Construction Contract and correction of defective work; 6.2 The responsibilities of Contractor under the Construction Contract to pay liquidated damages, and for damages for which no liquidated damages, are specified in the Construction Contract, actual damages caused by non-performance of the Construction Contract including, but not limited to, all valid and proper backcharges,offsets,payments,indemnities,or other damages; 6.3 Additional legal,design professional and delay costs resulting from Contractor Default or resulting from the actions or failure to act of the Surety under paragraph 4,above(but excluding attorney's fees incurred to enforce this Bond). 7. No right of action shall accrue on this Bond to any person or entity other than City or its successors or assigns. 00610-2 8. Surety hereby waives notice of any change, alteration or addition to the Construction Contract or to related subcontracts,purchase orders and other obligations, including changes of time. Surety consents to all terms of the Construction Contract, including provisions on changes to the Contract. No extension of time, change, alteration, modification, deletion, or addition to the Contract Documents, or of the work required thereunder, shall release or exonerate Surety on this Bond or in any way affect the obligations of Surety on this Bond. 9. Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction where a proceeding is pending between City and Contractor regarding the Construction Contract, or in the courts of the County of Santa Clara,or in a court of competent jurisdiction in the location in which the work is located.Communications from City to Surety under paragraph 3.1 of this Bond shall be deemed to include the necessary contracts under paragraph 3.2 of this Bond unless expressly stated otherwise. 10. All notices to Surety or Contractor shall be mailed or delivered(at the address set forth on the signature page of • this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract). Actual receipt of notice by Surety,City or Contractor,however accomplished,shall be sufficient compliance as of the date received at the foregoing addresses. 11. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein. 12. Definitions. 12.1 Balance of the Contract Sum:The total amount payable by City to Contractor pursuant to the terms of the Construction Contract after all proper adjustments have been made under the Construction Contract, for example,deductions for progress payments made,and increases/decreases for approved modifications to the Construction Contract. 12.2 Construction Contract:The contract between City and Contractor identified on the signature page of this Bond,including all Contract Documents and changes thereto. 12.3 Contractor Default: Material failure of Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract including,but not limited to, "default" or any other condition allowing a termination for cause as provided in Document 00700 (General Conditions). 12.4 City Default: Material failure of City, which has neither been remedied nor waived,to pay Contractor progress payments due under the Construction Contract or to perform other material terms of the Construction Contract, if such failure is the cause of the asserted Contractor Default and is sufficient to justify Contractor termination of the Construction Contract. END OF DOCUMENT 00610-3 ACKNOWLEDGMENT State of California County of San Mateo On February 28, 2013 before me, Deborah M. Knipp, Notary Public (insert name and title of the officer) personally appeared Mary Baez who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Q."`'•<., DEBORAH M.KNIPP WITNESS my hand and official seal. ogr , COMM. #1979771 t o p ' rr Notary Public.California 70 z V`'' I San Mateo County c _ ,t,: MY Comm.Expires Ma y)6,2016/ Signature /ifitec,YeZAWL)(Seal) • '490)1 r1/41 v .- • itAN. ' . •11 : .46!•te-:, . ^n. : i; Bond No: 12089145 Included in Premium Performance Bond DOCUMENT 00620 CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND THIS CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND("Bond")is dated February 28, 3 Q�3. penal sum Seventy Thousand One Hundred Three and No/100 > ule [one hundred percent of the Contract Price],and is entered into by and between the parties listed below to ensure the payment of claimants under the Construction Contract listed below. This Bond consists of this page and the Bond Terms and Conditions, paragraphs 1 through 14, attached to this page. Any singular reference to G. Bortolotto & Company ("Contractor"),The Guarantee Company of North America USA ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR SURETY: G.Bortolotto & Company The Guarantee Company of North America USA Name Name 582 Braqato Road 1 Towne Square, Ste 1470 Address Carlos, CA 94070 Principal Place of Business Southfield, MI 48076 City/State/Zip City/State/Zip CONSTRUCTION CONTRACT: MINOR ASPHALT IMPROVEMENTS(FY12/13) at Cupertino,California. DATED February 28 ,2013 in the Amount of$70, 103 . 00 (the"Penal Sum") CONTRACTOR AS PRINCIPAL SURETY The Guarantee Company of North Company: (Corp.Seal) Company: (Corp.Seal) America USA G. rtolot & Company y Signature. (x—, h n( � Signature: 71- �ameandT'tle: -� ��Lp' }c� Name and Title: Mary Baez, '7�ttorn.e -in-Fact �5� y BOND TERMS AND CONDITIONS 1. Contractor and Surety,jointly and severally,bind themselves,their heirs,executors,administrators, successors and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract,which is incorporated herein by reference. 2. With respect to City,this obligation shall be null and void if Contractor: 2.1 Promptly makes payment,directly or indirectly,for all sums due Claimants;and 2.2 Defends,indemnifies and holds harmless City from all claims,demands,liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contact, provided City has promptly notified Contractor and Surety (at the address set forth on the signature page of this Bond) of any claims, demands, liens or suits and tendered defense of such claims,demands,liens or suits to Contractor and Surety,and provided there is no City Default. 3. With respect to Claimants,this obligation shall be null and void if Contractor promptly makes payment,directly or indirectly through its Subcontractors, for all sums due Claimants. If Contractor or its Subcontractors, however,fail to pay any of the persons named it Section 3181 of the California Civil Code, or amounts due under the Unemployment Insurance Code with respect to Work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor or Subcontractors pursuant to Section 13020 of the Unemployment Insurance Code,with respect to such Work and labor,then Surety shall pay for the same,and also,in case suit is brought upon this Bond,a reasonable attorney's fee,to be fixed by the court 4. Consistent with the California Mechanic's Lien Law,Civil Code§3082,et seq.,Surety shall have no obligation to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements. 5. Surety's total obligation shall not exceed the amount of this Bond,and the amount of this Bond shall be credited for any payments made in good faith by Surety under this Bond. 6. Amounts due Contractor under the Construction Contract shall be applied first to satisfy claims, if any, under any Construction Performance Bond and second, to satisfy obligations of Contractor and Surety under this Bond. 7. City shall not be liable for payment of any costs,expenses,or attorney's fees of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to,give notices on behalf of,or otherwise have obligations to Claimants under this Bond. 8. Surety hereby waives notice of any change,including changes of time,to the Construction Contract or to related subcontracts,purchase orders and other obligations. Surety further hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Construction Contract, or to the Work to be performed thereunder,or materials or equipment to be furnished thereunder or the Specifications accompanying the same,shall in any way affect its obligations under this Bond,and it does hereby waive any requirement of notice or any such change,extension of time,alteration or addition to the terms of the Construction Contract or to the Work or to the Specifications or any other changes. 9. Suit against Surety on this Bond may be brought by any Claimant,or its assigns,at any time after the Claimant has furnished the last of the labor or materials,or both,but,per Civil Code§3249,must be commenced before the expiration of six months after the period in which stop notices may be filed as provided in Civil Code §3184. 10. All notices to Surety or Contractor shall be mailed or delivered(at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract). Actual receipt of notice by Surety,City or Contractor,however accomplished,shall be sufficient compliance as of the date received at the foregoing addresses. 11. This Bond has been furnished to comply with the California Mechanic's Lien Law including,but not limited to, Civil Code§§3247,3248,et seq. Any provision in this Bond conflicting with said statutory requirements shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirements shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 13. Contractor shall pay to persons performing labor in and about Work provided for in the Contract Documents an amount equal to or more than the general prevailing rate of per diem wages for(1)work of a similar character in the locality in which the Work is performed and(2)legal holiday and overtime work in said locality. The per diem wages shall be an amount equal to or more than the stipulated rates contained in a schedule that has been ascertained and determined by the Director of the State Department of Industrial Relations and City to be the general prevailing rate of per diem wages for each craft or type of workman or mechanic needed to execute this Contract. Contractor shall also cause a copy of this determination of the prevailing rate of per diem wages to be posted at each Site. 00620-2 14. Definitions. 14.1 Claimant An individual or entity having a direct contract with Contractor or with a Subcontractor of Contractor to furnish labor, materials or equipment for use in the performance of the Contract, as further defined in California Civil Code §3181. The intent of this Bond shall be to include without limitation in the terms"labor, materials or equipment"that part of water, gas,power,light,heat,oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the Work of Contractor and Contractor's Subcontractors,and all other items for which a stop notice might be asserted. The term Claimant shall also include the Unemployment Development Department as referred to in Civil Code§3248(b). 14.2 Construction Contract: The contract between City and Contractor identified on the signature page of this Bond,including all Contract Documents and changes thereto. 14.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract,provided that failure is the cause of the failure of Contractor to pay the Claimants and is sufficient to justify termination of the Construction Contract. END OF DOCUMENT r ,11_ ACKNOWLEDGMENT State of California County of San Mateo On February 28, 2013 before me, _ Deborah M. Knipp, Notary Public (insert name and title of the officer) personally appeared Mary Baez who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. COMM. #1979771 y Notary Public•California San Mateo County •.,y Comm. • 26.2016 Signature A ____.driAf ,I' .. t,!,t1 (Seal) / MMOD $ 4 - vI6` 41' 0 _ Oh% 12. ■:).;.5.4.1.4*i •'1/1 ••••■•••••00 THE GUARANTEE COMPANY OF NORTH AMERICA USA GUARANTEE Southfield, Michigan POWER OF ATTORNEY KNOW ALL BY THESE PRESENTS:That THE GUARANTEE COMPANY OF NORTH AMERICA USA,a corporation organized and existing under the laws of the State of Michigan,having its principal office in Southfield,Michigan,does hereby constitute and appoint Gregory McCartney, Steve Suissa, Mary Baez James E. McGovern, Inc. its true and lawful attorney(s)-in-fact to execute, seal and deliver for and on its behalf as surety, any and all bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof,which are or may be allowed,required or permitted by law,statute,rule,regulation,contract or otherwise. The execution of such instrument(s)in pursuance of these presents, shall be as binding upon THE GUARANTEE COMPANY OF NORTH AMERICA USA as fully and amply, to all intents and purposes, as if the same had been duly executed and acknowledged by its regularly elected officers at the principal office. The Power of Attorney is executed and may be certified so,and may be revoked,pursuant to and by authority of Article IX,Section 9.03 of the By-Laws adopted by the Board of Directors of THE GUARANTEE COMPANY OF NORTH AMERICA USA at a meeting held on the 31'n day of December,2003. The President,or any Vice President,acting with any Secretary or Assistant Secretary,shall have power and authority: 1. To appoint Attorney(s)-in-fact,and to authorize them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,contracts of indemnity and other writings obligatory in the nature thereof;and 2. To revoke,at any time,any such Attorney-in-fact and revoke the authority given,except as provided below 3. In connection with obligations in favor of the Florida Department of Transportation only,it is agreed that the power and authority hereby given to the Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the fina'estimate to the Contractor and/or its assignee,shall not relieve this surety company of any of its obligations under its bond. 4. In connection with obligations in favor of the Kentucky Department of Highways only,it is agreed that the power and authority hereby given to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner— Department of Highways of the Commonwealth of Kentucky at least thirty(30)days prior to the modification or revocation. Further,this Power of Attorney is signed and sealed by facsimile pursuant to resolution of the Board of Directors of the Company adopted at a meeting duly called and held on the 6th day of December 2011,of which the following is a true excerpt: RESOLVED that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, contracts of indemnity and other writings obligatory in the nature thereof,and such signature and seal when so used shall have the same force and effect as though manually affixed. ,.3o►"T cod IN WITNESS WHEREOF, THE GUARANTEE COMPANY OF NORTH AMERICA USA has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer,this 23rd day of February,2012. q ; THE GUARANTEE COMPANY OF NORTH AMERICA USA STATE OF MICHIGAN Stephen C.Ruschak,Vice President Randall Musselman,Secretary County of Oakland On this 23rd day of February,2012 before me came the individuals who executed the preceding instrument,to me personally known,and being by me duly sworn,said that each is the herein described and authorized officer of The Guarantee Company of North America USA;that the seal affixed to said instrument is the Corporate Seal of said Company;that the Corporate Seal and each signature were duly affixed by order of the Board of Directors of Cynthia A. Takai IN WITNESS WHEREOF,I have hereunto set my hand at The Guarantee !n 4 Notary Public,State of Michigan Company of North America USA offices the day and year above written. County of Oakland My Commission Expires February 27,2018 J a /� Y<c .w: Acting in Oakland County �� -e,„ I,Randall Musselman,Secretary of THE GUARANTEE COMPANY OF NORTH AMERICA USA,do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney executed by THE GUARANTEE COMPANY OF NORTH AMERICA USA,which is still in full force and effect. f �w*mac*mac IN WITNESS WHEREOF,I have thereunto set my hand and attached the seal of said Company this 28TH day of February 2013 181 '.0.0`* Randall Musselman,Secretary A °® CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 3/1/2013 ' THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER McGovern Insurance 1625 El Camino Real CONTACT NAME: Belmont, CA 94002 PHONE(A/c.No.Ext): 650-593-8216 FAx(A/c,No): 650-594-9130 E-MAIL ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# _ www.jemins.com INSURER A: Travelers Property Casualty Co.of America INSURED INSURER B: Travelers Indemnity Company of Connecticut G. Bortolotto&Company, Inc. 582 Bragato Road _INSURER C: • ., - In r-1 ..- •1 •-n San Carlos CA 94070 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 15636005 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE:BEEN REDUCED BY PAID CLAIMS. INSR ADDL SUER LTR TYPE OF INSURANCE .J 5R WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS A GENERAL LIABILITY / 1 CO-2C163028-12 8/21/2012 8/21/2013 EACH OCCURRENCE $ 1,000,000 COMMERCIAL GENERAL LIABILITY DAMAGESO R NTunence) $ 300,000 _ CLAIMS MADE I OCCUR MED EXP(Any one person) $ 5,000 PERSONAL&ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 2,000,000 PRO- ,/1 POLICY JECT ECT LOC $ B AUTOMOBILE LIABILITY 810-2C163028-12 8/21/2012 8/21/2013 COMBINED SINGLE LIMIT ,/ ANY AUTO (Ea accident) $ 1,000,000 BODILY INJURY(Per person) $ 1,000,000 ALL OWNED SCHEDULED __ AUTOS AUTOS BODILY INJURY(Per accident) $ 1,000,000 ✓ HIRED AUTOS 1/ NON SWNED PROPERTY DAMAGE (Per accident) $ 1,000,000 -- $ C ✓ UMBRELLA LIAR OCCUR $ XLS0084031 8/21/2012 8/21/2013 EACH OCCURRENCE $ 5,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 5,000,000 DED RETENTION$ $ $ A WORKERS COMPENSATION UB-2C163028-12 8/21/2012 8/21/2013 WCSTATU- O - AND EMPLOYERS'LIABILITY Y/N TORY LIMITS ER 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE - OFFICER/MEMBER EXCLUDED? N/A E.L.EACH ACCIDENT $ 1,000,000 (Mandatory in NH) If yes,describe under E.L.DISEASE-EA EMPLOYEE $ 1,000,000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES (Attach ACORD 101,Additional Remarks Schedule,if more space Is required) RE:Work performed @ 12/13 Minor Asphalt Improvements,City of Cupertino GBC#13553 Additional Insured&Primary Phrase:See Attached *30 days Notice of Cancellation,except for non-pay of premium which is 10 days. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Cupertino THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Public Works Dept. ACCORDANCE WITH THE POLICY PROVISIONS. 10555 Mary Avenue _ Cupertino CA 95014 AUTHORIZED REPRESENTATIVE ‘ ie—,'"e.. . Wi.irit.,. Steve Suissa ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25(2010/05) The ACORD name and logo are registered marks of ACORD CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Borman 3/1/2013 2:26:16 PM Page 1 of 6 POLICY NUMBER. COMMERCIAL AUTO 810-2C163028-12 G. Bortolotto& Company, Inc. ISSUE DATE 8/21/2012 CAM 01 02 ADDITIONAL INSURED THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM Paragraph c. of the WHO IS AN INSURED 1. No liability is assumed by that person provision includes the person or or organization for the payment of any organization indicated below, but only for premiums stated in the policy or earned his, her or its liability because of acts or under the policy. omissions of an "insured" under paragraphs a. or b. of that provision, subject to the 2. In the event of cancellation of the following additional provisions: policy, written notice of cancellation will be mailed by us to that person or organization. Person or Organization Address City of Cupertino, a municipal corporation, its officers, directors, employees and volunteers E®010299 CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Norman 3/1/2013 2:26:16 PM Page 2 of 6 POLICY NUMBER: CO-2C163028-12 COMMERCIAL GENERAL LIABILITY G. Bortolotto & Company, Inc. CG 24 0410 93 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person or Organization: City of Cupertino,a municipal corporation,its officers,directors,employees and volunteers (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement.) The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition (Section IV — COMMERCIAL GENERAL LIABILITY CONDITIONS) is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the"products-completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. CG 24 0410 93 Copyright, Insurance Services Office, Inc., 1992 Page 1 of 1 ❑ CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Borman 3/1/2013 2:26:16 PM Page 3 of 6 Policy No.: CO-2C163028-12 St. Paul/Travelers Insurance Company Policy Holder:G. Bortolotto&Company, Inc. CG D2 46 08 05 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED — (Section II) is amended to include any person or organization that you agree in a "written contract requiring insurance"to include as an additional insured on this Coverage Part, but: a) Only with respect to liability for"bodily injury", "property damage"or"personal injury"; and b) If, and only to the extent that, the injury or damage is caused by acts or omissions of you or your subcontractor in the performance of"your work" to which the "written contract requiring insurance" applies. The person or organization does not qualify as an additional insured with respect to the independent acts or omissions of such person or organization. 2. The insurance provided to the additional insured by this endorsement is limited as follows: a) In the event that the Limits of Insurance of this Coverage Part shown in the Declarations exceed the limits of liability required by the "written contract requiring insurance", the insurance provided to the additional insured shall be limited to the limits of liability required by that "written contract requiring insurance". This endorsement shall not increase the limits of insurance described in Section III—Limits Of Insurance. b) The insurance provided to the additional insured does not apply to "bodily injury", "property damage" or "personal injury" arising out of the rendering of, or failure to render, any professional architectural, engineering or surveying services, including: i. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders or change orders, or the preparing, approving, or failing to prepare or approve, drawings and specifications; and ii. Supervisory, inspection, architectural or engineering activities. c) The insurance provided to the additional insured does not apply to "bodily injury" or "property damage" caused by "your work" and included in the "products-completed operations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured, and then the insurance provided to the additional insured applies only to such "bodily injury" or "property damage"that occurs before the end of the period of time for which the "written contract requiring insurance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 3. The insurance provided to the additional insured by 1:his endorsement is excess over any valid and collectible "other insurance", whether primary, excess, contingent or on any other basis, that is available to the additional insured for a loss we cover under this endorsement. However, if the "written contract requiring insurance" specifically requires that this insurance apply on a primary basis or a primary and non-contributory basis, this insurance is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But the insurance provided to the additional insured by this endorsement still is excess over any valid and collectible "other insurance", whether primary, excess, contingent or on any other basis, that is available to the additional insured when that person or organization is an additional insured under such "other insurance". Page 1 of 2 CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Worman 3/1/2013 2:26:16 PM Page 4 of 6 4. As a condition of coverage provided to the additional insured by this endorsement: a) The additional insured must give us written notice as soon as practicable of an "occurrence" or an offense which may result in a claim. To the extent possible, such notice should include: i. How, when and where the"occurrence"or offense took place; ii. The names and addresses of any injured persons and witnesses; and iii. The nature and location of any injury or damage arising out of the"occurrence"or offense. b) If a claim is made or"suit" is brought against the additional insured, the additional insured must: i. Immediately record the specifics of the claim or"suit"and the date received; and ii. Notify us as soon as practicable. The additional insured must see to it that we receive written notice of the claim or "suit" as soon as practicable. c) The additional insured must immediately send us copies of all legal papers received in connection with the claim or"suit", cooperate with us in the investigation or settlement of the claim or defense against the"suit", and otherwise comply with all policy conditions. d) The additional insured must tender the defense and indemnity of any claim or"suit"to any provider of"other insurance"which would cover the additional insured for a loss we cover under this endorsement. However, this condition does not affect whether the insurance provided to the additional insured by this endorsement is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured as described in paragraph 3. above. 5. The following definition is added to SECTION V. —DEFINITIONS: "Written contract requiring insurance" means that part of any written contract or agreement under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and "property damage" occurs and the "personal injury" is caused by an offense committed: a. After the signing and execution of the contract or agreement by you; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period. City of Cupertino, a municipal corporation, its officers, directors, employees and volunteers CG D3 46 08 05 TRAVELERS Page 2 of 2 CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Norman 3/1/2013 2:26:16 PM Page 5 of 6 3/1/2013 TRAVELERS WORKERS COMPENSATION/EMPLOYERS LIABILITY POLICY Insured: G. Bortolotto & Company, Inc. Policy# UB-2C163028-12 ENDORSEMENT WC 99 03 76 00 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 5 % of the California workers' compensation premium otherwise due on such remuneration. Additional Insured: City of Cupertino, a municipal corporation, its officers, directors, employees and volunteers CERT NO.: 15636005 CLIENT CODE: BORTO-1 MaryAnn Worman 3/1/2013 2:26:16 PM Page 6 of 6