The URL can be used to link to this page

16-019 DeSilva Gates Construction LP, 2016 Pavement Maintenance Project, Project No. 2016-15Project No. 2016-15 DOCUMENT 00650 AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS THIS AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS ("Agreement and Release"), made and entered into this 4th day of April, 2017, by and between the City of Cupertino("City"), and De Silva Gates Construction ("Contractor"), whose place of business is at 11555 Dublin Boulevard, P.O Box 2909, Dublin, CA 94568. RECITALS A. City and Contractor entered into Contract Number 2016-458 (the "Contract"). B. The Work under the Contract has been completed. Now, therefore, it is mutually agreed between City and Contractor as follows: AGREEMENT 1. Contractor will not be assessed liquidated damages except as detailed below: Original Contract Sum Modified Contract Sum Payment to Date Liquidated Damages Payment Due Contractor $ 3,133,331.00 $ 3,205,670.90 $ 3.084.804.0 I $Q $ 120,866.89 2. Subject to the provisions of this Agreement and Release, City will fo1ihwith pay to Contractor the sum of One Hundred Twenty Thousand Eight Hundred Sixty-Six Dollars and Eighty-Nine Cents ($120,866.89) under the Contract, less any amounts withheld under the Contract or represented by any Notice to Withhold Funds on file with City as of the date of such payment. 3. Contractor acknowledges and hereby agrees that there are no unresolved or outstanding claims in dispute against City arising from the Contract, except for the claims described in paragraph 4 of this Document 00650. It is the intention of the paiiies in executing this Agreement and Release that this Agreement and Release shall be effective as a full, final and general release of all claims, demands, actions, causes of action, obligations, costs, expenses, damages, losses and liabilities of Contractor against City, and all if its agents, employees, consultants (including without limitation Consulting Cupertino), inspectors, representatives, assignees and transferees except for the Disputed Claims set forth in paragraph 4 of this Document 00650. Nothing in this Agreement and Release shall limit or modify Contractor's continuing obligations described in paragraph 6 of this Document 00650 . 4. The following claims are disputed (hereinafter, the "Disputed Claims") and are specifically excluded from the operation of this Agreement and Release: Claim No. Date Submitted . Description of Claim Amount of Claim [Insert information, including attachment if necessary) City of Cupertino Agreement and Release of Any and All Claims 2016 Pavement Maintenance Project 00650 -l Project No. 2016-15 5. Consistent with California Public Contract Code Section 7100, Contractor hereby agrees that, in consideration of the payment set fo1th in paragraph 2 of this Document 00650, Contractor hereby releases and forever discharges City, and all of its agents, employees, consultants, inspectors, assignees and transferees from any and all liability, claims, demands, actions or causes of action of whatever kind or nature arising out of or in any way concerned with the Work under the Contract 6. Guarantees and warranties for the Work, and any other continuing obligation of Contractor, shall remain in full force and effect as specified in the Contract Documents. 7. Contractor shall immediately defend, indemnify and hold harmless the City of Cupertino, Santa Clara County, its Architect, any of their Representatives, and all of their agents, employees, consultants, inspectors, assignees and transferees, from any and all claims, demands, actions, causes of action, obligations, costs, expenses, damages, losses and liabilities that may be asserted against them by any of Contractor's suppliers and/or Subcontractors of any tier and/or any suppliers to them for any and all labor, materials, supplies and equipment used, or contemplated to be used in the performance of the Contract, except for the Disputed Claims set forth in paragraph 4 of this Document 00650 . 8. Contractor hereby waives the provisions of California Civil Code Section 1542 , which provides as follows : A general release does not extend to claims that the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him, must have materially affected bis settlement with the debtor. 9. The provisions of this Agreement and Release are contractual in nature and not mere recitals and shall be considered independent and severable, and if any such provision or any part thereof shall be at any time held invalid in whole or in part under any federal, state, county,-municipal or other law, ruling, or regulation, then such provision, or patt thereof s hall remain in force and effect only to the extent permitted by law, and the remaining provisions of this Agreement and Release shall also remain in full force and effect, and shall be enforceable. I 0. Contractor represents and warrants that it is the true and lawful owner of all claims and other matters released pursuant to this Agreement and Release, and that it has full right, title and authority to enter into this instrument. Each party represents and warrants that it has been represented by counsel of its own choosing in connection with this Agreement and Release. 11. All rights of City shall survive completion of the Work or termination of the Contract, and execution of this Agreement and Release. City ofCupe1tino Agreement and Release of Any and All C laims 2016 Pavement Maintenance Project 00650 - 2 * * * CAUTION: THJS IS A RELEASE -READ BEFORE EXECUTING* '-' * THE CITY OF CUPERTINO, a Municipal Corporation of the State of California By ~ Its : 'i) , ·rs'' d~ of-j\6-\, L~ h2t1 r Jc,. (City Clerk! r:;;--( \ -(1 (CONTRACTOR! By: DGS, LWI 6An:"5 C.o,-.,J'rrt.vc..n o>-1 Name: _-4&-....c=..,"--?a=""'-''A"-'-<-V½Pl;==,:lA..,,-=-='------ Its : AVf..GA MAtJt>iCo Gl/4......., S-/e/ZoFt By: ______________ _ Name: _____________ _ Its: ______________ _ REVIEWED AS T O FORM: (City Attorney! -------~-\~o, _ _,.20 Ir END OF DOCUMENT Project No. 20 I 6-15 City of Cupertino Agreement and Release of Any and All Claims 2016 Pavement Maintenance Project 00650 -3 RECORDING REQUESTED BY City of Cupertino WHEN RECORDED MAIL TO City Clerk's Office City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27283 23521843 Regina Alcomendras Santa Clara County -Clerk-Recorder 12/07/2016 03:10 PM Ti t.les: 1 Fees: $0.00 Taxes: $0 Total : $0. 00 Pages: 3 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) NOTICE OF COMPLETION CITY PROJECT NAME: 2016 PAVEMENT MAINTENANCE PROJECT (City Project Number 2016-15) JfJ Original D For Fast Endorsement "NO FEE" City of Cupertino NOTICE OF COMPLETION is hereby given in order to comply with the provisions of Section 27283 of the Government Code. This is to certify that the Notice of Completion dated October 12, 2016 for CITY PROJECT NAME: 2016 PAVEMENT MAINTENANCE PROJECT (City Project Number 2016-15) and the City of Cupertino, a governmental agency is hereby accepted by the City of Cupertino on December 7, 2016 and the grantee consents to recordation thereof by its duly authorized officer. I certify under Penalty of Perjury under the laws of the State of California that the foregoing paragraph is true and correct. Dated: By: December 7, 2016 Lauren Sapudar Senior Office Assistant CUP E RTINO Recording Requested By : When Recorded Mail To: City of Cupertino 10300 Torre Ave . Cupert ino , CA 95014 SPACE ABOVE THIS LINE IS FOR RECORDER 'S USE NOTICE OF COMPLETION Civil Code§§ 8182 , 8184 , 9204 , and 9208 NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is the agent of the owner of the project described below . 2. Owner 's full name is : City of Cupert ino , Cal ifornia . 3. Owner's address is : City Hall , 10300 Torre Ave., Cupertino , CA 95014 . 4 . The nature of owner's interest in the project is : _ Fee Ownersh ip Lessee _X_ Othe r: Right-of-Way on var ious st reets 5. Construction work on the project performed on the owner 's behalf is generally described as follows : City Project Name : 2016 Pavement Maintenance Project (City Project No .: 2016-15 ) 6. The name of the original contractor for the project is: DeS ilva Gates Construction , L.P . 7. The project was completed on : December 5, 2016 . 8. The project is located at: Various streets in Cupertino , CA Verification : In signing this document, I, the undersigned , declare under penalty of perjury under the laws of the State of Cal ifornia that I have read this notice , and I know and understand the contents of this notice , and that the facts stated in this notice are true ~ I J--1--/~ ; Santa Clara County · / L Date and Place Sigri'atu .~ Timm Borden / :;...--t...--Director of Public Wo rks and C ity Enginee r Project No. 2016-15 DOCUMENT 00520 CONTRACT THIS CONTRACT, dated this <'tS day of Mo.v~d, , 2016, by and between DeSilva Gates Construction LP whose place of business is located at 11555 Dublin Blvd., Dublin CA 94568 ("Contractor"), and the CITY OF CUPERTINO, a Municipal Corporation of the State of California ("City") acting under and by virtue of the authority vested in the City by the laws of the State of California. WHEREAS, City, on the _5L_ day of Man: ... h , 2016 awarded to Contractor the following Project: PROJECT NUMBER 2016-15 2016 PAVEMENT MAINTENANCE PROJECT NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, Contractor and City agree as follows: Article 1. Work 1.1 Contractor shall complete all Work specified in the Contract Documents, in accordance with the Specifications, Drawings, and all other terms and conditions of the Contract Documents. Article 2. Agency and Notices to City 2.1 City has designated Roger Lee, Assistant Director, Public Works -Maintenance, to act as City's Authorized Representative(s), who will represent City in performing City's duties and responsibilities and exercising City's rights and authorities in Contract Documents. City may change the individual(s) acting as City's Authorized Representative(s), or delegate one or more specific functions to one or more specific City's Representatives, including without limitation engineering, architectural, inspection and general administrative functions, at any time with notice and without liability to Contractor. Each City's Representative is the beneficiary of all Contractor obligations to City, including without limitation, all releases and indemnities. 2.2 All notices or demands to City under the Contract Documents shall be to City's Authorized Representative at: 10300 Torre Avenue, Cupertino, California 95014 or to such other person(s) and address( es) as City shall provide to Contractor. Article 3. Contract Time and Liquidated Damages 3.1 Contract Time. The Contract Time will commence to run on the date indicated in the Notice to Proceed. City may give a Notice to Proceed at any time within 30 Days following May 1, 2016. Contractor shall not do any Work at the Site prior to the date on which the Contract Time commences to run. Contractor shall achieve Final Completion of the entire Work and be ready for Final Payment in accordance with Section 00700 (General Provisions) within 110 working days as provided in Document 00700 (General Provisions). All work on streets near schools and all striping enchancements shall be complete prior to August 15, 2016. See Attachment A for a list school streets. Several utility main replacements will occur within the project area. Paving will follow completion of utility work. Contractor will coordinate schedule accordingly. See Attachment for a list ofutility projects identified to date. City of Cupertino 00520 - 1 Contract 2016 Pavement Maintenance Project No. 2016-15 3.2 Liguidated Damages. City and Contractor recognize that time is of the essence of this Contract and that City will suffer financial loss in the form of contract administration expenses (such as project management and consultant expenses), if all or any part of the Work is not completed within the times specified above, plus any extensions thereof allowed in accordance with the Contract Documents. Consistent with Document 00700 (General Provisions), Contractor and City agree that because of the nature of the Project, it would be impractical or extremely difficult to fix the amount of actual damages incurred by City because of a delay in completion of all or any part of the Work. Accordingly, City and Contractor agree that as liquidated damages for delay Contractor shall pay City: 3.2.1 $1,500 for each Calendar Day that expires after the time specified herein for Contractor to achieve Substantial Completion as specified above. 3.2.2 $1,500 for each Calendar Day that expires after the time specified herein for Contractor to achieve Final Completion of the entire Work as specified above. 3.2.3 $250 per day per location for failure to adjust utility facilities as required per Document 0850 section 6. 3.2.4 $500 per day for failure to place temporary pavement markers as required by Document 850 Section 7. 3.2.5 $150 per day for failure to place final traffic striping as required by Document 0850, Section 7. 3.2.6 $100 per day per traffic loop not replaced as required by Document 0850, Section 8. 3.2.7 $5,000 for each occurrence of a violation of Document 00800, Section 1.7 WORK DAYS AND HOURS. 3.2.8 $500 per street per day for failure to complete work within time specified in paragraph 3 .1. 3.2.9 Three Months Salary for each Key Personnel named in Contractor's SOQ pursuant to Article 2.G of Document 00450 (Statement of Qualifications for Construction Work) who leaves tl1e Project and/or Contractor replaces at any point before Final Completion, for any reason whatsoever, that Contractor can demonstrate to City's satisfaction is beyond Contractor's control. Liquidated damages shall apply cumulatively and, except as provided below, shall be presumed to be the damages suffered by City resulting from delay in completion of the Work. 3.3 Liquidated damages for delay shall only cover administrative, overhead, interest on bonds, and general loss of public use damages suffered by City as a result of delay. Liquidated damages shall not cover the cost of completion of the Work, damages resulting from defective Work, lost revenues or costs of substitute facilities, or damages suffered by others who then seek to recover their damages from City (for example, delay claims of other contractors, subcontractors, tenants, or other third-parties), and defense costs thereof. Article 4. Contract Sum 4.1 City shall pay Contractor the Contract Sum for completion of Work in accordance with Contract Documents as set forth in Contractor's Bid, attached hereto: See Exhibit "A" attached Article 5. Contractor's Representations In order to induce City to enter into this Contract, Contractor makes the following representations and warranties: 5.1 Contractor has visited the Site and has examined thoroughly and understood the nature and extent of the Contract Documents, Work, Site, locality, actual conditions, as-built conditions, and all local conditions, and City of Cupertino 00520 -2 Contract 2016 Pavement Maintenance Project Project No. 2016-15 federal, state and local laws and regulations that in any manner may affect cost, progress, performance or furnishing of Work or which relate to any aspect of the means, methods, techniques, sequences or procedures of construction to be employed by Contractor and safety precautions and programs incident thereto. 5.2 Contractor has examined thoroughly and understood all reports of exploration and tests of subsurface conditions, as-built drawings, drawings, products specifications or repmis, available for Bidding purposes, of physical conditions, including Underground Facilities, or which may appear in the Drawings. Contractor accepts the determination set foiih in these Documents and Document 00700 (General Provisions) of the limited extent of the information contained in such materials upon which Contractor may be entitled to rely. Contractor agrees that except for the information so identified, Contractor does not and shall not rely on any other information contained in such reports and drawings. 5.3 Contractor has conducted or obtained and has understood all such examinations, investigations, explorations, tests, repmis and studies (in addition to or to supplement those referred to in Section 5.2 of this Document 00520) that pertain to the subsurface conditions, as-built conditions, underground facilities, and all other physical conditions at or contiguous to the Site or otherwise that may affect the cost, progress, performance or furnishing of Work, as Contractor considers necessary for the performance or furnishing of Work at the Contract Sum, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Document 00700 (General Provisions); and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are or will be required by Contractor for such purposes. 5.4 Contractor has conelated its knowledge and the results of all such observations, examinations, investigations, explorations, tests, reports and studies with the terms and conditions of the Contract Documents. 5.5 Contractor has given City prompt written notice of all conflicts, enors, ambiguities, or discrepancies that it has discovered in or among the Contract Documents and as-built drawings and actual conditions and the written resolution thereof through Addenda issued by City is acceptable to Contractor. 5.6 Contractor is duly organized, existing and in good standing under applicable state law, and is duly qualified to conduct business in the State of California. 5.7 Contractor has duly authorized the execution, delivery and performance of this Contract, the other Contract Documents and the Work to be performed herein. The Contract Documents do not violate or create a default under any instrument, contract, order or decree binding on Contractor. 5.8 Contractor has listed Subcontractors pursuant to the Subcontractor Listing Law, California Public Contracting Code §4100 et seq. in document 00340 (Subcontractors List) Article 6. Contract Documents 6.1 Contract Documents consist of the following documents, including all changes, addenda, and modifications thereto: City of Cupe1iino Document 00002 Signature Page Document 00003 Project Directmy Document 00012 Caltrans/City Cross-Reference Table Document 00100 Adve1iisement For Bids Document 00200 Instructions to Bidders Document 00210 Indemnity and Release Agreement Document 00400 Bid Fonn Document 00411 Bond Accompanying Bid Document 00430 Subcontractors List Document 00450 Statement of Qualifications Document 00481 Non-Collusion Affidavit Document 00482 Bidder Certifications Document 00520 Contract Document 00530 Insurance Forms 00520 - 3 2016 Pavement Maintenance Contract Document 00610 Construction Performance Bond Document 00620 Construction Labor and Material Payment Bond Document 00630 Guaranty Document 00650 Agreement and Release of Any and All Claims Document 00660 Substitution Request Form Document 00700 General Conditions Document 00800 Special Conditions Document 00820 Traffic Control Requirements Document 00821 Insurance Document 00822 Apprenticeship Program Document 00850 Teclmical Specifications Document 00860 General Requirements Attachment A Work Hour Restrictions Addenda(s) Drawings/Plans Project No. 2016-15 6.2 There are no Contract Documents other than those listed in this Document 00520, Article 6. The Contract Documents may only be amended, modified or supplemented as provided in Document 00700 (General Provisions). Article 7. Miscellaneous 7.1 Terms used in this Contract are defined in Document 00700 (General Provisions) and will have the meaning indicated therein. 7 .2 It is understood and agreed that in no instance are the persons signing this Contract for or on behalf of City or acting as an employee, agent, or representative of City, liable on this Contract or any of the Contract Documents, or upon any warranty of authority, or otherwise, and it is fmiher understood and agreed that liability of the City is limited and confined to such liability as authorized or imposed by the Contract Documents or applicable law. 7.3 Contractor shall not assign any portion of the Contract Documents, and may subcontract p01iions of the Contract Documents only in compliance with the Subcontractor Listing Law, California Public Contracting Code §4100 et seq. 7.4 The Contract Sum includes all allowances (if any). 7.5 In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, Contractor or Subcontractor offers and agrees to assign to the awarding body all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U. S .C. § 15) or under the Cmiwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time City tenders final payment to Contractor, without fu1iher acknowledgment by the pmiies. 7.6 Copies of the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Contract, as determined by Director of the State of California Depmiment of Industrial Relations, are deemed included in the Contract Documents and on file at City's office, or may be obtained of the State of California web site http://www.dir.ca.gov/DLSR/PWD/N01ihern.html and shall be made available to any interested pmiy on request. Pursuant to Section 1861 of the Labor Code, Contractor represents that it is aware of the provisions of Section 3 700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and Contractor shall comply with such provisions before c01mnencing the performance of the Work of the Contract Documents. City of Cupertino 00520 - 4 Contract 2016 Pavement Maintenance Project Project No. 2016-15 7.7 Should any part, term or provision of this Contract or any of the Contract Documents, or any document required herein or therein to be executed or delivered, be declared invalid, void or unenforceable, all remaining parts, terms. and provisions shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby. If the provisions of any law causing such invalidity, illegality or unenforceability may be waived, they are hereby waived to the end that this Contract and the Contract Documents may be deemed valid and binding contracts, enforceable in accordance with their terms to the greatest extent permitted by applicable law. In the event any provision not otherwise included in the Contract Documents is required to be included by any applicable Jaw, that provision is deemed included herein by this reference( or, if such provision is required to be included in any particular portion of the Contract Documents, that provision is deemed included in that portion). 7.8 This Contract and the Contract Documents shall be deemed to have been entered into in the County of Santa Clara, State of California, and governed in all respects by California law (excluding choice of law rules). The exclusive venue for all disputes or litigation hereunder shall be in Santa Clara County. Both parties hereby waive their rights under California Code of Civil Procedure Section 394 to file a motion to transfer any action or proceeding arising out of the Contract Documents to another venue. Contractor accepts the Claims Procedure in Document 00700, Article 12, established under the California Government Code, Title 1, Division 3.6, Part 3, Chapter 5. City of Cupertino 00520 -5 Contract 2016 Pavement Maintenance Project No. 2016-15 IN WITNESS WHEREOF the parties have executed this Contract in quadruplicate the day aud year first above written. 2016 PAVEMENT MAINTENANCE PROJECT CITY: CONTRACTOR: CITY OF CUPERTINO, a Municipal Corporation of the State of California uowgyc __ ity_A_tt_or_n_e_y= _____ _ City Attorney: Randolph Stevenson Hom ~ I hereby certify, under penalty of pe1jury, that David Brandt, City Manager of the City of Cupertino was duly authorized to execute this document. David Brandt, City 1anager of the City of Cupertino, a Municipal Corporation of the State of California Designated Representative: Name: Roger Lee Title: Assistant Director of Public Works - Address: 10300 TolTe Ave, Cupertino, CA 95014 Phone: 408-777-3354 Facsimile: 408-777-3333 AMOUNT: $3,133,331.00 ACCOUNT#: 270-85-821-900-921 ($3,055,912.00) ACCOUNT# 270-90-962-900-905 ($77,419.00) ACCOUNT#: FILE NO.: 98,493.109 B~~~~~~~~~~~~~~~~ [Signature] Richard B. Gates [Please print name here] Title: President and General Partner [If Corporation: Chairman , President, or Vice President] [Please print name here] Title: ________________ _ [If Corporation: Secretary, Assistant Secretary, Chief Financial Officer, or Assistant Treasurer] 704195 A, Cl2, C31 State Contractor's License No. Classification 3/31/2017 Expiration Date Taxpayer ID No. 68-0344477 Name: Richard B. Gates Title: President and General Partner Address: 11555 Dublin Boulevard, Dublin, CA 94568 Phone: (925) 829-9220 Facsimile: (925) 803-4263 NOTARY ACKNOWLEDGEMENT JS REQUIIIBD. IF A CORPORATION, CORPORATE SEAL AND CORPORATE NOTARY ACKNOWLEDEMENT AND FEDERAL TAX ID ARE REQUIRED. IF NOT A CORPORATION SOCIAL SECUIUTY NO. IS REQUIRED END OF DOCUMENT City of Cupertino 00520 -6 Contract 2016 Pavement Maintenance Project CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Civil Code § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy of validity of that document. State of California County of Alameda ) SS ) On February 18, 2016 , before me, Victoria Pisano, Notary Public , personally appeared ____ R_ic_h_a_rd_B_._G_a_te_s ___ ~, who proved to me on the basis of satisfactory evidence to be the person(-s} whose nameW isfa.t:e subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityfies}, and that by his/her/their signatureW on the instrument the perso~, or the entity upon behalf of which the personfs} acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature : __ 1£ ....... At""I... """fiwv..........:;;_-=-· -1-\e~iMwu/..o<..=.:..J<><-.-- ---'-V""'ic..;;.;to;;..;.n-.·a-'-P"""'is;..;;.a;;..;.no ___ , Notary Public (Print Name) Bond No. 106425923 Premium: $14,100.00 DOCUMENT 00610 CONSTRUCTION PERFORMANCE BOND Project No. 2016-15 THIS CONSTRUCTION PERFORMANCE BOND ("Bond") is dated February 10, 2016, is in the penal sum of Three Million One Hundred Thirty Three Thousand Three Hundred Thirty One and 00/100 ($3,133,331.00) _________________________ [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 referenc~ to DeSilva Gates Construction, L.P. ("Contractor"), Travelers Casualty and Surety Company of Amenca("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR: DeSilva Gates Construction, L.P. Name 11555 Dublin Boulevard Address Dublin, CA 94568 City/State/Zip CONSTRUCTION CONTRACT: SURETY: Travelers Casualty and Surety Company of America Name One Tower Square Principal Place of Business Hartford, CT 06183 City/State/Zip 2016 PAVEMENT MAINTENANCE PROJECT PROJECT NUMBER 2016-15 at Cupertino, California. Three Million One Hundred Thirty Three Thousand Three Hundred Thirty One and 00/100 Dollars ($3,133,331.00) DATED _________ , 20 __ in the Amount of$ (the "Penal Sum") SURETY Name and Title: RICHARD B. GATES PRESIDENT AND GENERAL PARTNER Signature: -:?""""'"""-''-""""""VL.c===-t:....:=:.i.....<"1'-!"""<..a'-"-- Name and Title: Susan Lupski, Attorney-In-Fact BOND TERMS AND CONDITIONS I. 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 terms of this Bond and the Construction Contract; or City of Cupertino Construction Performance Bond 2016 Pavement Maintenance Project 00610 - 1 Project No. 2016-15 3.2.2 To a contractor selected to perform the Construction Contract in accordance with the terms of this Bond and the Construction Contract. 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). City of Cupertino Construction Performance Bond 2016 Pavement Maintenance Project 00610 -2 Project No. 2016-15 7. No right of action shall accrue on this Bond to any person or entity other than City or its successors or assigns. 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.l 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 City of Cupertino Construction Performance Bond 2016 Pavement Maintenance Project 00610 - 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Civil Code § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy of validity of that document. State of California County of Alameda ) SS ) On ___ F_e""-br-'-u ..... ary....__1_8._, 2_0_1_6 _ _,, before me, Victoria Pisano, Notary Public, personally appeared ____ R_ic_h_a_rd_B_._G_a_te_s ___ ~, who proved to me on the basis of satisfactory evidence to be the person(-5} whose namefs} isfai:e subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityfi.es.}, and that by his/her/their signaturefs} on the instrument the personfs}, or the entity upon behalf of which the personfs} 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. (Seal) Signature: __ ~-JJ',~·~r;(ffu0~---~...._..Mwnd_·~~-- ---'-V""""ic=to.;...;.ria"'-'-P;..;..isa=n.;;.;;;o __ , Notary Public (Print Name) WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ..... POWER OF ATTORNEY TRAVELERSJ Attorney-In Fact No. Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fil'e and Marine Insurance Company St. Paul Guardian Insurance Company 229701 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company n·avelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 006550876 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Thomas Hean. Rita Sagistano, Gerard S. Machol!,, Susan Lupski, Robert T. Pearson, Camille Maitland. George O. Hrcwsler, Colcllc R. Chisholm, Vincent A. Walsh. Lee Ferrucci. Desiree Cardlin. Nelly Renchiwich, and Mia Woo-Warren Uniondale New York of the City of , State of , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the pe1formance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. 9th IN WITNESS WJIEREOF, the Compauw~ have caused this instrument to be signed and their corporate seals to be hereto affixed, this __________ _ Ocloucr LU 1 'i day of - State of Connecticut City of Hartford ss. Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insul'ance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company By: St. Paul Mercury Insurance Company Travelers.Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company ~ 'Roberti::Rane;e President 9th October 2015 . On this the day of , before me personally appeared Robert L. Raney, who acknowledged lumself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authmized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. 58440-8-12 Printed in U.S.A. 'Marie C. Tetreault, Notary Public WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authmity to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authmity or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this ____ day of FEB 102016 .20 To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ACKNOWLEDGMENT OF SURETY COMPANY STATE OF ...... ~~:'.". X ?f~.. .. ... } N SS COUNTY OF ...•.. €1.~~!3.~ ....... . . February 10, 2016 susan Lupski On this ......... ; ...................................... , before me personally came ............................................................. . to me known, who, being by ·me duly sworn, d!d depose and say; that he/she resides In •••• ~~~.~~.~.g9.\l!'!!Y ................................... , State of ... New .York. .............. , that he/she Is the Attorney-In-Fact of the Travelers Casualty and Surety Company of America h . d . I ' ................................................................................... t e corporation describe 1n w.h ch executed the above instrument; that he/she knows 'the seal of said corporation; that the seal affixed to said Instrument is such corporate sear; that Is was so affixed by the Board of Directors of said corporation; and that he/she signed hls/her name thereto by like order; and the affiant did further. depose and say that the Superintendent of Insurance of the State of New York 1 has, P.Ursuant to Se9tiofA 1111 of the Insurance Law of the State of New York, issued to ..... xrav~J1w~.Q~.~H~.tx.?n~ •. ~!-!~~Y.f~':1:1P.~.~¥.~ ... !:1.~~~?~ ............... (Surety) his/her certificate of qualification evidencing the qualification of said Company and its sufficiency under a y law of the State of New York-as surety and guarantor. and the propriety of accepting an7 provln ·it as su ; and that such certificate has not been revoked. . . ............................ , ••• ,........ ••• .., ........... t. •• .c,.:~ .. ·~· .................. . Notary Public NY acknowlcdgc~cnt . ' MELISSA SARACINO Notary Public, State of New York No.01SA6155895 Qualified in Nassau County Commission Expires November 20, 2018 TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA CASH AND INVESTED CASH BON(fS STOCKS ASSETS INVESTMENT INCOME DUE AND ACCRUED OTHER INVESTED ASSETS PREMIUM BALANCES NET DEFERRED TAX ASSET REINSURANCE RECOVERABLE SECURITIES LENDING REINVESTED COLLATERAL ASSETS RECEIVABLES FROM PARENT, SUBSIDIARIES AND AFFILIATES OTHER ASSETS TOTAL ASSETS STATE OF CONNECTICUT COUNTY OF HARTFORD ) SS. CITY OF HARTFORD HARTFORD, CO~NECTICUT 06183 FINANCIAL STATEMENT AS OF DECEMBER 31, 2014 CAPITAL STOCK$ 6,480,0DO $ 127,187,283 3,411,436,937 326,931,879 45,277,103 4,019,416 209.982,904 62,639,844 17,397,751 8,224,694 9,057,199 3,078,655 $ 4,225,233,665 UNEARNED PREMIUMS LOSSES LOSS ADJUSTMENT EXPENSES COMMISSIONS TAXES, LICENSES AND FEES OTHER EXPENSES LIABILITIES & SURPLUS CURRENT FEDERAL AND FOREIGN INCOME TAXES REMITIANCESAND ITEMS NOT ALLOCATED AMOUNTS WITHHELD I RETAINED BY COMPANY FOR OTHERS RETROACTIVE REINSURANCE RESERVE ASSUMED POLICYHOLDER DIVIDENDS PROVISION FOR REINSURANCE ADVANCE PREMIUM PAYABLE FOR SECURITIES PAYABLE FOR SECURITIES LENDING CEDED REINSURANCE NET PREMIUMS PAYABLE ESCHEATLIABILITY . OTHER ACCRUED EXPENSES AND LIABILITIES TOTAL LIABILITIES CAPITAL STOCK PAID IN SURPLUS OTHER SURPLUS TOTAL SURPLUS TO POLICYHOLDERS TOTAL LIABILITIES & SURPLUS MICHAEL J. DOODY, BEING DULY SWORN, SAYS THAT HE IS SECOND VICE PRESIDENT, OF TRAVELERS CASUAL TY AND SURETY COMPANY OF AMERICA, AND THATTO THE BEST OF HIS KNOWLEDGE AND BELIEF, THE FOREGOING IS A TRUE AND CORRECT STATEMENT OF THE FINANCIAL CONDITION OF SAID COMPANY AS OF THE 31ST DAY OF DECEMBER, 2014. SUBSCRIBED AND SWORN TO BEFORE ME THIS 19TH DAY OF MARCH, 2015 NOifll'rrpUEitfC'" SUSAN M. WEISSLEDER Notary Public My Commission Expires November 30, 2017 $ 855,349,712 660, 106,443 356,911,923 34,142,046 11,534,866 40,097,405 24,133,560 11,062,662 41,744,996 853,430 7,376,699 3,416,505 1,327,118 4,590,765 6,224,694 26,084,142 1,136,046 421157 $ 2,110,576,190 $ 6.480,000 '133,603, 760 1,674,373,715 2,114,657,475 $ 4,225,233,665 Bond No. 106425923 Premium included in premium for the Performance Bond Project No. 2016-15 DOCUMENT 00620 CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND THIS CONSTRUCTION LABOR AND MATERIAL PA YNIENT BOND ("Bond") is dated February 1 o, 2016 , is in the penal sum Three Million One Hundred Thirty Three Thousand Three Hundred Thirty One and 00/100 Dollars (3, 133,331.00) [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 DeSilva Gates Construction, L.P. ("Contractor"), Travelers Casualty and Surety Company of America ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR: DeSilva Gates Construction, L.P. Name 11555 Dublin Boulevard Address Dublin, CA 94568 City/State/Zip CONSTRUCTION CONTRACT: SURETY: Travelers Casualty and Surety Company of America Name One Tower Square Principal Place of Business Hartford, CT 06183 City/State/Zip 2016 PAVEMENT MAINTENANCE PROJECT PROJECT NUMBER 2016-15 at Cupertino, California. Three Million One Hundred Thirty Three Thousand Three Hundred Thirty One and 00/100 Dollars ($3, 133,331.00) DATED -------~ 20 __ in the Amount of$ (the "Penal Sum") CONTRA-&~'FPRIN~ Company: rp. S al r----D~Silva Gate ·~ Signature: ______________ _ SURETY Name and Title: RICHARD B. GATES PRESIDENT AND GENERAL PARTNER BOND TERMS AND CONDITIONS 1. Contractol' 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 perfonnance 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 hannless City from all claims, demands, liens or suits by any person or entity who :furnished labor, materials or equipment for use in the perfonnance of the Construction Contact, provided City has promptly notified Contractor and Surety (at the address set fmth on the signahll'e 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 in Section 3181 of the Califomia Civil Code, or amounts due City of Cupertino Construction Labor and Material Payment Bond 2016 Pavement Maintenance Project 00620 • 1 Project No. 2016-15 ui1der the Unemployment Insurance Code with respect to Work or labor pe1fonned 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 unde.r the Construction Contract shall be applied first to satisfy claims, if any, under any Construction Perfo1mance 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, induding 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 perfonned thereunder, or materials or equipment to be furnished thereunder or the SpecificatiollS 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 mouths 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 pl'ovisions confom1ing 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. City of Cupertino 2016 Pavement Maintenance Project 00620-2 Construction Labor and Material Payment Bond Project No. 2016-15 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 equipmenf' 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 City of Cupertino Construction Labor and Material Payment Bond 2016 Pavement Maintenance Project 00620 - 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT Civil Code § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy of validity of that document. State of California County of Alameda ) SS ) On February 18, 2016 , before me, Victoria Pisano, Notary Public, personally appeared ____ R_ic_h_a_rd_B_._G_a_te_s ___ _., who proved to me on the basis of satisfactory evidence to be the person(-5} whose name{s} is/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity-{+e£}, and that by his/her/their signature{s} on the instrument the personts:}, or the entity upon behalf of which the personts:} 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. • VICTORIA PISANO Commission# 2128860 ~ Notary Public • California i l ( ~ • 0,;A . ,.i.) i Alameda County ~ Signature: V .1CAffUl,u I~ J My Comm. Exw~es Oct 30, 2019t -------~~------ (Seal) .-. -' ' 0 ' • 0 0 0 0 "' • • • s • e •' ___ V_ic_to_n_·a_P_is_a_no ___ ., Notary Public (Print Name) WARNING: THIS POWER OF ATIORNEY IS INVALID WITHOUT THE RED BORDER ....... POWER OF ATTORNEY TRAVELERSJ Attorney-In Fact No. Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company 229701 St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company Certificate No. 006550863 KNOW ALL MEN BY THESE PRESENTS: That Farmington Casualty Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company are corporations duly organized under the laws of the State of Connecticut, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Thomas Bean. Rita Sagislano, Gerard S. Macholz, Susan Lupski, Rohert T. Pearson, Camille Maitland, George O. Brewster, Coletle R Chisholm, Vincent A. Walsh, Lee Ferrucci, Desiree Cardlin, Nelly Renchiwich, and Mia Woo-Warren Uniondale New York of the City of , State of , their true and lawfnl Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. 9th IN WITNESS w 6 HEREOF, the Compaui\:S have caused this instrument to be signed and their corporate seals to be hereto affixed, this __________ _ ~~ CT LUIS day of __________ _ State of Connecticut City of Hartford ss. Farmington Casualty Company Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insm•ance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company By: St. Paul Mercury Insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company 9th October 2015 On this the day of , before me personally appeared Robe1t L. Raney, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. 58440-8-12 Printed in U.S.A. ""'Marie C. Tetreault, Notary Public WARNING: THIS POWER OF ATIORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATIORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Pan! Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her ce1tificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other wiitings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant SecretaJy and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such Power of Attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I, Kevin E. Hughes, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. TN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this ____ day of _~F~E=B~~1 ~0~2=0~1=6 ___ , 20 To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. WARNING: THIS POWER OF ATIORNEY IS INVALID WITHOUT THE RED BORDER ACKNOWLEDGMENT OF SURETY COMPANY STATE OF ...... !'}~.»'. X ?f~.... ... } N SS COUNTY OF ...•.. ?.~~?.~ ....... . • February 10, 2016 Susan Lupski On this ................................................. , before me personally came ........................................................... .. to me known, who, being by -me duly sworn, did depose and say; that he/she resides in •••• t.i~§.~~.1!.Q9.W!!Y ................................... , State of ... New.York. .............. , that he/she Is the Attorney-Jn-Fact of the Travelers Casualty and Surety Company of America . h I d 'b d . I h ................................................................................... t e corporat on escr1 e 1n w.h c executed the above-instrument; that he/she knows ·the seal of said corporation; that the seal affixed to said Instrument is such corporate sear; that fs was so affixed by the Board of Directors of said coi'poration; and that he/she ·signed h(s/her name thereto by like order; and the affiant did further. depose and say that the Supertntendent of fnsurance of the State of New York! has, P.Ursuant to Se¢iol1A 1111 of the Insurance Law of the State of New York, issued to ..... xrav~Jiw~.9.~.E!~.~.tx.~n9 .. ~.L!~~!Y .. ~~':1:1P.~.~¥.~ ... !:1.7~~?~ ............... (Surety) his/her certificate of qualification evidencing the qualification of said Company and fts sufficiency under any law of the State of _New York-as surety and guarantor, and the propriety of accepting and approvlng·it as such; nd that such certificate has not been revoked. NY acknowlc:dgclfient . ' . ........................ ,, ................. , .................. , .. ,, .. , .. -... ~············ Notary Public MELISSA SARACINO Notary Public, State of New York No. 01SA6155895 Qualified in Nassau Countyo 2018 Commission Expires November 2 ' TRAVELERS CASUAL TY AND SURETY COMPANY OF AMERICA CASH AND INVESTED CASH BONl?.S STOCKS ASSETS INVESTMENT INCOME DUE AND ACCRUED OTHER INVESTED ASSETS PREMIUM BALANCES NET DEFERRED TAX ASSET REINSURANCE RECOVERABLE SECURITIES LENDING REINVESTED COLLATERAL ASSETS RECEIVABLES FROM PARENT, SUBSIDIARIES AND AFFILIATES OTHER ASSETS TOTAL ASSETS STATE OF CONNECTICUT COUNTY OF HARTFORD ) SS. CITY OF HARTFORD HARTFORD, CO!'!NECT!CUT 06163 FINANCIAL STATEMENT AS OF DECEMBER 31, 2014 CAPITAL STOCK$ 5,480,000 . $ 127,187,283 3,411,436,937 326,931,879 45,277,103 4,019,416 209,982,904 62,639,844 17,397,751 8,224,694 9,057,199 3,078,655 ll '4,225,233,665 UNEARNED PREMIUMS LOSSES LOSS ADJUSTMENT EXPENSES COMMISSIONS TAXES, LICENSES AND FEES OTHER EXPENSES LIABILITIES & SURPLUS CURRENT FEDERAL AND FOREIGN INCOME TAXES REMITIANCES AND ITEMS NOT ALLOCATED AMOUNTS WITHHELD I RETAINED BY COMPANY FOR OTHERS RETROACTIVE REINSURANCE RESERVE ASSUMED POLICYHOLDER DIVIDENDS PROVISION FOR REINSURANCE ADVANCE PREMIUM PAYABLE FOR SECURITIES PAYABLE FOR SECURITIES LENDING CEDED REINSURANCE NET PREMIUMS PAYABLE ESCHEAT LIABILllY . OTHER ACCRUED EXPENSES AND LIABILITIES TOTAL LIABILITIES CAPITAL STOCK PAID IN SURPLUS OTHER SURPLUS TOTAL SURPLUS TO POLICYHOLDERS TOTAL LIABILITIES & SURPLUS MICHAEL J. DOODY, BEING DULY SWORN, SAYS THAT HE IS SECOND VICE PRESIDENT, OF TRAVELERS CASUAL TY AND SURElY COMPANY OF AMERICA, AND THAT TO THE BEST OF HIS KNOWLEDGE AND BELIEF, THE FOREGOING IS A TRUE AND CORRECT STATEMENT OF THE FINANCIAL CONDITION OF SAID . COMPANY AS OF THE 31ST DAY OF DECEMBER, 2014, SUBSCRIBED AND SWORN TO BEFORE ME THIS 19TH DAY OF MARCH, 2015 SUSANM WEISSLEDER Notary Public My Commission Expires November 30, 2017 $ 855,349,712 660, 166,443 356,911,923 34,142,046 11,534,866 40,097,405 24,133,560 11,062,662 41,744,996 853,430 7,376,699 3,416,505 1,327,118 4,590,766 6,224,694 26,084,142 1,136,046 421157 $ 2, 110,576,190 $ 6,460,000 433,803,760 1,674,373,715 2,114,657,475 $ 4,225,233,665 Project No. 2016-15 DOCUMENT 00630 GUARANTY TO THE CITY OF CUPERTINO, a Municipal Corporation of the State of California ("City"), for construction of 2016 PAVEMENT MAINTENANCE PROJECT CUPERTINO, CALIFORNIA The undersigned guarantees all construction performed on this Project and also guarantees all material and equipment incorporated therein. Contractor hereby grants to City for a period of one year following the date of Final Acceptance, or such longer period specified in the Contract Documents, its unconditional warranty of the quality and adequacy of all of the Work including, without limitation, all labor, materials and equipment provided by Contractor and its Subcontractors of all tiers in connection with the Work. Neither final payment nor use or occupancy of the Work performed by the Contractor shall constitute an acceptance of Work not done in accordance with this Guaranty or relieve Contractor of liability in respect to any express warranties or responsibilities for faulty materials or workmanship. Contractor shall remedy any defects in the Work and pay for any damage resulting therefrom, which shall appear within one year, or longer if specified, from the date of Final Acceptance. If within one year after the date of Final Acceptance, or such longer period of time as may be prescribed by laws or regulations, or by the terms of Contract Documents, any Work is found to be defective, Contractor shall promptly, without cost to City and in accordance with City's written instructions, correct such defective Work. Contractor shall remove any defective Work rejected by City and replace it with Work that is not defective, and satisfactorily correct or remove and replace any damage to other Work or the work of others resulting therefrom. If Contractor fails to promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the defective Work corrected or the rejected Work removed and replaced. Contractor shall pay for all claims, costs, losses and damages caused by or resulting from such removal and replacement. Where Contractor fails to correct defective Work, or defects are discovered outside the correction period, City shall have all rights and remedies granted by law. Inspection of the Work shall not relieve Contractor of any of its obligations under the Contract Documents. Even though equipment, materials, or Work required to be provided under the Contract Documents have been inspected, accepted, and estimated for payment, Contractor shall, at its own expense, replace or repair any such equipment, material, or Work found to be defective or otherwise not to comply with the requirements of the Contract Documents up to the end of the guaranty period. All abbreviations and definitions of terms used in this Agreement shall have the meanings set forth in the Contract Documents, including, without means oflimitation, Section 00700 (General Conditions). The foregoing Guaranty is in addition to any other warranties of Contractor contained in the Contract Documents, and not in lieu of, any and all other liability imposed on Contractor under the Contract Documents and at law with respect to Contractor's duties, obligations, and performance under the Contract Documents. In the event of any conflict or inconsistency between the terms of this Guaranty and any warranty or obligation of the Contractor under the Contract Documents or at law, such inconsistency or conflict shall be resolved in favor of the higher level of obligation of the Contractor. Desilva Gates Construction LP Contractor's Name 11555 Dublin Boulevard Address Dublin, CA 94568 City/State/Zip City of Cupertino 2016 Pavement Maintenance Project 2/18/16 Date END OF DOCUMENT 00630 - 1 Guaranty Project No. 2016·15 DOCUMENT 00530 INSURANCE FORMS INSURANCE FORMS INSTRUCTIONS FOR ITEMS 3, 4 At~D 5, THE FORMS PROVIDED BY THE CITY OF CUPERTINO MUST BE USED. FORMS OTHER THAN THESE WILL NOT BE ACCEPTED. ALL DOCUMENTS MUST BE ORIGINALS -SUBMIT IN TRIPLICATE 1. Insurance Agreement -Must be signed by Contractor. 2. Certificate of Insurance to the City of Cupertino -must be completed by the insurance agent fil: must provide a certificate on the company's form. They must contain the same information. 3. Endorsement of Additional Insured and Primary Insurance and Notice of Cancellation -must be signed by the insurance agent for general liability and automobile liability only. 4. Comprehensive general liability/commercial general liability endorsement of aggregate limits of insurance per project -must be signed by the insurance agent for general liability only. 5. Waiver of subrogation endorsement worker's compensation insurance -must be signed by the insurance agent for worker's compensation only. City of Cupertino 2016 Pavement Maintenance Project Insurance Fonns 00530-1 CITY OF g Project No. 2016·15 CUPERTINO INSURANCE AGREEMENT A. Contractor is aware of the provisions of Section 3700 of the Labor Code, which requires every employer to be insured against liability for worker's compensation or undertake self- insurance in accordance with the provisions of that Code, and will comply with such provisions before commencing the perfonnance of the work of this Contract. B. Contractor and all subcontractors will carry worker's compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against the City, the City's officers, agents and employees and shall issue an endorsement to the policy evidencing same. C. Contractor shall carry at all times, on alJ operations hereunder, commercial general liability insurance, automobile liability insurance and builder's all risk insurance. All insurance coverage shall be in amounts required by the City and shall be evidenced by the issuance of a certificate in a fonn prescribed by the City and shall be underwritten by insurance companies satisfactory to the City for all operations, sub-contract work, contractual obligations, product or completed operations, all owned vehicles and non-owned vehicles. Said insurance coverage obtained by the Contractor, excepting worker's compensation coverage, shall name the City, its engineer, and each of its directors, officers, agents and employees, as determined by the City, as additional insureds on said policies. Insurers must be licensed to do business in the State of California. The Insurers must also have an "A" policyholder's rating and a financial rating of at least Class VII in accordance with the current Best's Guide Rating or that is otherwise acceptable to the City. D. Before Contractor perfonns any work at, or prepares or delivers materials to, the site of construction, Contractor shall furnish certificates of insurance evidencing the foregoing insurance coverages and such certificates shall provide the name and policy number of each carrier and policy and that the insurance is in force and will not be canceled or modified without thirty (30) days written notice to the City. Contractor shall maintain all of the foregoing insurance coverages in force until the work under this Contract is fully completed. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of the City by Contractor under this Contract and for the duration of the warranty period. Notwithstanding nor diminishing the obligations of Contractor with respect to the foregoing, Contractor shall maintain in full force and effect during the life of this Contract, the following insurance in amounts not less than the amounts specified and having a Best's Guide Rating of A, Class VU or better or that is otherwise acceptable to the City. City of Cupertino 2016 Pavement Maintenance Project Insurance Forms 00530 -2 Project No. 2016-15 LIMITS Worker's Compensation & Employers' Liability General Liability -commercial general liabiJity; including provisions for contractual liability, personal injury, independent contractors and products -completed operations hazard. Automobile Liability -comprehensive covering owned, non-owned and hired automobiles. In accordance with the Worker's Compensation Act of the State of California -Worker's comp "statutory" per CA Law; Employers' Liability $1,000,000 per occurrence. Combined single limit of $2.0 million per occurrence; $4.0 million in the aggregate Combined single limit of$1.0 million per occurrence. ~ ~-By:S> Richard B. Gates, President and General Partner DeSilva Gates Construction LP (Contractor's Name) City of Cuperti110 2016 Pavement Maintenance Project Dated: February 18 20-1.§_ Insurance Forms 00530. 3 Cl'rYOI' Project No. 2016·15 c;.UPERTINO CERTIFICATE OF INSURANCE TO THE CITY OF CUPERTINO This certifies to the City of Cupertino that the following described policies have been issued to the insured named below and are in force at this time. Insured: Desilva Gates Construction, L.P. Address: 11555 Dublin Blvd. Dublin, CA 94568 Description of operations/locations/products insured (show contract name and/or number, if any): Pavement Maintenance Project WORKER'S COMPENSATION * Statutory Min. * Employer's National Union Fire lnsur_ance_Co Pittsburgh,Peiability (name of insurer) $1,000,000 $ 1,000,000 $ 1,000,000 Insurance Company 1s State License No. -'-7"-04.:.;;:;1"'""95::;.,_ _______________ _ ==:::::===========---===~-=:;----===----======--========;:;::::;;:;===== Check Policy Type: Each Occurrence $ 2,000,000 COMPREHENSIVE GENERAL LIABILITY [ ] Premises/Operations General Aggregate $ 4,000,000 (if applicable) [ ] Ovvners & Contractors Protective Aggregate $ 2,000,000 [ J Contractual for Specific Contract Personal Injury $ [ ] Products Liability [ ] XCUHazards ( ] Broad Form P.O. Fire Damage (any one fire) $_ 1,000,000 [ ] Severability of Interest Clause [ ] Personal Injury with Medical Expense $ 5,000 Employee Exclusion Removed (any one person) or Self-Insured COMMERCIAL GENERAL LIABILITY Retention $ N/A_ .. _. National Union Fire Insurance Company of Pittsburgh, PA (name of insurer) Policy No. _G_L_S6_l_0_64_9 ____ _ Expiration Date--"4/_1,.,../2-"0_16 ___ -"- City of Cupertino 2016 Pavement Maintenance Project Insurance Forms 00530 -4 AUTOMOTIVENEHICLE LIABILITY Commercial Form Liability Coverage National Union Fire Insurance Co Pittsburgh, PA (name of insurer) BODILY INJURY Each Person $ _____ _ Each Accident Project No. 2016-15 PROPERTY DAMAGE Each Accident $---~--- $ or Combined Single Limit $ 2,000,000 Policy No. CA 6579_2-~---· Expiration Date ~y2016 __ ~=====.:::::----... ============ =========-=== BUILDER'S RISK "ALL RISK" This is to certify that the following policy has been issued by the below-stated company in conformance with the requirements of the project documents and is in force at this time. NIA (Name of insurer) Policy No. Expiration Date ______ ~ Limits of Liability: Deductible:-------- ~~=========== --=========================:==~~~======'-===== ~ A copy of all Endorsements to the policy(ies) which in any way (agent's initial) limit the above-listed types of coverage are attached to this Certificate of Insurance. This Certificate of Insurance js not an insurance policy and does not amend, extend or alter the coverage afforded by the policies listed herein. Notwithstanding any requirement, term, or condition of any contract or any other document with respect to which this Ce11ificate of Insurance may be issued 01· may pertain, the insurance afforded by the policies described herein is subject to I all the tenns, exclusions and conditions of such policies. IT IS HEREBY CERTIFIED that the above policy(ies) provide liability insurance as required by the Agreement between the City and the insured. By: Michelle Schirle Dated: 2/18/2016 Attach Certificate of Insurance and Additional Insured Endorsement on company fonns. City of Cupertino 2016 Pavement Maintenance Project Insurance Fonns 00530. 5 20 CITY OF II CUPERTINO ADDITIONAL INSURED ENDORSEMENT and ENDORSEMENT OF PRIMARY INSURANCE and NOTICE OF POLICY CANCELLATION ENDORSEMENT Project Title and Number: Pavement Maintenance Project Project No. 2016-15 In consideration of the policy premium and notwithstanding any inconsistent statement in the policy to which this Endorsement is attached or any other Endorsement attached thereto, it is agreed as follows: The City of Cupertino ("City'') and its directors, officers> engineers, agents and employees, and aU public agencies from whom pem1its will be obtained and their directors, officers, engineers, agents and employees, and the State of California, and its officers, agents and employees, are hereby declared to be additional insureds undel' the tern1s of this policy, but only with respect to the operations of the Contractor at or upon any of the premises of the City in connection with the Contract with the City, or acts or omissions of the additional insureds in connection with, but limited to its general supervision or inspection of said operations. The insurance afforded by this policy is primary insurance, and no additional insurance held or owned by the designated additional insured(s) shall be called upon to cover a loss under said additional policy. Cancellation Notice, The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits, or materially altered, except after thirty (30) days' prior written notice by cc1tified mail, return receipt requested, has been given to the City of Cupertino ("City"). Such notice shall be addressed to the City as indicated below. POLICY INFORMATION l. Insurance Company: National Union Fire Insurance Company of Pittsburgh, ~-A _______ _ 2. Insurance Policy Number:_~~-s_s_1_06_4_9 __ _ 3, Effective Date of this Endorsement:_ 4/1/201~·---·-·---·-·---.. -----20 ____ , __ 4. Insured: Desilva Gates Con_st_ru_c_tl_on~,_L._P. ______________________ _ All notices herein provided to be given by the Insurance Company to the City in connection with this policy and these Endorsements, shall be mailed to or delivered to the City at 10300 Torre Avenue; Cupertino, Califomia 95014. I, Michelle Schirle City of Cupertino 2016 Pavement Maintenance Project ________________ (print/type name) Insurance Fonns 00530. 6 Project No. 2016-15 warrant that I have authority to bind the below listed Insurance Company and by my signature hereon do so bind this Company. Names of Agent/Agency: Arthur J. Gallagher & Co.Insurance Brokers of CA Title: Business Development Specialist, Senior Address: 1255 Battery Street, Suite 450 San Francisco, CA 94111 City of Cupertino 2016 Pavement Maintenance Project Insurance Forms 00530 ~7 Telephone: (415) 2~0 ___ _ Facsimile: (415) 391-1882 ---·------- C!ITYOF Project No. 2016-15 1111 COMPREHENSIVE GENERAL LIABILITY · ·. COMMERCIAL GENERAL LIABILITY . · ENDORSEMENT OF AGGREGATE LIMITS OF ~=~~Tit-t~-.-....... ~-.. -~tiSlt~~-!l:Ei~~B9·lJ~•QE=-.... --------... -.. -----------·- Project Title and Number:. __ Pa_v_e_m_en_t_M_a_ln_t_en_a_n_ce_P_r_oi_·e_ct ___________ _ In consideration of the policy premium and notwithstanding any inconsistent statement in the policy to which this Endorsement is attached or any other Endorsement attached thereto, it is as follows: This Endorsement modifies the insurance provided under the General Liability Coverage part of the below-referenced policy of insurance. The general aggregate limit under LIMITS OF INSURANCE applies separately to the project described as Designated Construction Project(s) General Aggregate Limit POLICY INFORMATION 1. Insurance Company:~nal Union Fire Insurance Co of Pittsburgh, PA 2. Insurance Policy Number: _~~-~-0-64_9 ___ , 3. Effective Date of this Endorsement:_4_/_1/_2_0_15 ________________ 20 __ 4. Insured: DeSlfva Gates C~_n_st_ru_c_tio_n ____________ . ________ _ 5. Additional Insured: City of Cupertino, its directors, omcers, agents and employees. All notices herein provided to be given by the Insurance Company to the City in connection with this policy and this Endorsement, shall be mailed to or delivered to the City at 10300 Torre Avenue; Cupertino, California 95014. I, Michelle Schirle (print/type name) warrant that I have authority to bind the below listed Insurance Company and by my signature hereon do so bind this Company. 'Names of Agent/ Agency: Arthur}: Gal.~agher & Co Insurance Broker of CA Address: 1255 Battery ~treet, Suite 450 ______ _ San Francisco, CA 94111 City of Cupertino 2016 Pavement Maintenance Project Insurance Forms 00530. 8 Title: Business Development Specialist, Senior Telephone: (415) 288-1640 ___ _ Facsimile: (415) 391-1882 CUPEltTINO WAIVER OF SUBROGATION ENDORSEMENT WORKER'S COMPENSATION INSURANCE Project No. 2016-15 In consideration of the policy premium and notwithstanding any inconsistent statement in the policy to which this Endorsement is attached or any other Endorsement attached thereto, it is agreed as follows: It is agreed that with respect to such insurance as is afforded by the policy, the Insurance Company waives any right of subrogation against the City of Cupertino, and each of its directors, officers, agents, consultants and employees by reason of any payment made on account of injury, including death resulting therefrom, sustained by any employee of the insured, arising out of the perfonnance of the above-refere11ced Contract. POLICY INFORMATION I. Jnsurance Company: National Union Fire Insurance Co of Pittsburgh, PA 2. Insurance Policy Number:_W_C_67_7_1_27_6_4 ___________ , _______ _ 3. Effective Date of this Endorsement:-'4'-"/1"--/2;;;..;0..;;;1"-S ___ _ 4. Insured: Desilva Gates Construction, L.P All notices herein provided to be given by the Insurance Company to the City in connection with this policy and this Endorsement, shall be mailed to or delivered to the City at 10300 Torre Avenue; Cupe1tino, California 95014, I, Michelle Schirle (print/type name) warrant that I have authority to bind the below listed Insurance Company and by my signature hereon do so bind this Company. Names of Agent/Agency: Arthur J. Gallagher & co Insurance Brokers of CA Title: Business Development Specialist, Senior Address: 1255 Battery Street, Suite 450 San Francisco, CA 94111 City of Cupertino 2016 Pavement Maintenance Project Insurance Forms 00530. 9 Telephone: (415) 2~0 __ _ Facsimile: (415) 39M882 ___ _ POLICY NUMBER: GL 561-06-49 COMMERCIAL GENERAL LIABILITY CG 20 10 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(sl Or Organization(s) Location(s) Of Covered Operations ANY PERSON OR ORGANIZATION WHOM YOU PER THE WRITTEN CONTRACT OR AGREEMENT. BECOME OBLIGATED TO INCLUDE AS AN ADDITIONAL INSURED AS AS RESULT OF ANY WRITTEN CONTRACT OR AGREEMENT YOU HAVE ENTERED INTO. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional Insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. CG 20 10 04 13 O Insurance Services Office, Inc., 2012 Page 1 of 2 D C. With respect to the insurance afforded to these additional insureds, the following is added to Section Ill · Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. Page 2 of 2 () Insurance Services Office, Inc., 2012 CG 20 10 04 13 D POLICY NUMBER: GL 561-06-49 COMMERCIAL GENERAL LIABILITY CG 20 37 04 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -OWNERS, LESSEES OR CONTRACTORS -COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Location And Description Of Completed Operations Or Organization(s) ANY PERSON OR ORGANIZATION PER THE WRITTEN CONTRACT OR WHOM YOU BECOME OBLIGATED AGREEMENT. TO INCLUDE AS AN ADDITIONAL INSURED AS AS RESULT OF ANY WRITTEN CONTRACT OR AGREEMENT YOU HAVE ENTERED INTO. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products-completed operations hazard". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agree- ment. the insurance afforded to such addi- tional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section Ill -Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insu- rance shown in the Declarations; whichever is less. This endorsement shall not increase the appli- cable Limits of Insurance shown in the Decla- rations. CG 20 37 04 13 4J> Insurance Services Office, Inc., 2012 Page 1 of 1 D ENDORSEMENT This endorsement, effective 12:01 A.M. 04/01 /2015 forms a part of policy No.GL 561-06-49 issued to DE SILVA GATES CONSTRUCT I ON, LP byNATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY COVERAGE FOR SPECIFIED PERSONS OR ORGANIZATIONS NAMED AS ADDITIONAL INSUREDS - ONGOING AND COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE FORM The following paragraph is added to SECTION II -WHO IS AN INSURED and applies only to persons or organizations we have added to your policy as additional insureds by endorsement to comply with insurance requirements of written contracts relative to: a) the performance of your ongoing operations for the additional insureds; or b) "your work" performed for the additional insureds and included in the "products-completed operations hazard": This insurance is primary over any similar insurance available to any person or organization we have added to this policy as an additional insured. However, this insurance is primary over any other similar insurance only if the additional insured is designated as a named insured in the Declarations of the other similar insurance. We will not require contribution of limits from the other similar insurance if the insurance afforded by this endorsement is primary. This insurance is excess over any other valid and collectible insurance, whether primary, excess, contingent or on any other basis, if it is not primary as defined in the paragraph above. All other terms and conditions of the policy are the same. 90533 (3/06) PA thorized R;~resentative or Countersignature (in States Where Applicable) Page 1 of 1 ENDORSEMENT # This endorsement, effective 12:01 A.M. 04/01 /2015 forms a part of Policy No. GL 561-06-49 issued to DE SILVA GATES CONSTRUCT I ON, LP By NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. LIMITED ADVICE OF CANCELLATION PROVIDED VIA E-MAIL TO ENTITIES OTHER THAN THE FIRST NAMED INSURED This policy is amended as follows: In the event that the Insurer cancels this policy for any reason other than non-payment of premium, and 1. the cancellation effective date is prior to this policy's expiration date; 2. the First Named Insured is under an existing contractual obligation to notify a certificate holder when this policy is canceled (hereinafter, the "Certificate Holder(s)") and has provided to the Insurer, either directly or through its broker of record, the email address of a contact at each such entity; and 3. the Insurer received this information after the First Named Insured receives notice of cancellation of this policy and prior to this policy's cancellation effective date, via an electronic spreadsheet that is acceptable to the Insurer, the Insurer will provide advice of cancellation (the "Advice") via e-mail to each such Certificate Holders within 1Q days after the First Named Insured provides such information to the Insurer; provided, however, that if a specific number of days is not stated above, then the Advice will be provided to such Certificate Holder(s) as soon as reasonably practicable after the First Named Insured provides such information to the Insurer. Proof of the Insurer emailing the Advice, using the information provided by the First Named Insured, will serve as proof that the Insurer has fully satisfied its obligations under this endorsement. This endorsement does not affect, in any way, coverage provided under this policy or the cancellation of this policy or the effective date thereof, nor shall this endorsement invest any rights in any entity not insured under this policy. The following Definitions apply to this endorsement: 1. First Named Insured means the Named Insured shown on the Declarations Page of this policy. 2. Insurer means the insurance company shown in the header on the Declarations page of this policy. All other terms, conditions and exclusions shall remain the same. 107414 (03/11) Page 1 POLICY NUMBER: GL 561-06--49 COMMERCIAL GENERAL LIABILITY CG 25 03 05 09 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED CONSTRUCTION PROJECT(S) GENERAL AGGREGATE LIMIT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Designated Construction Project(s): ALL LOCATIONS OR PROJECTS WHERE THE INSURED OWNS, MANAGES OR IS CONTRACTUALLY RESPONSIBLE FOR PROVIDING INSURANCE Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under Section I -Coverage A, and for all medical expenses caused by accidents under Section I -Coverage C, which can be attributed only to ongoing operations at a single desig- nated construction project shown in the Sched- ule above: 1. A separate Designated Construction Project General Aggregate Limit applies to each des- ignated construction project, and that limit is equal to the amount of the General Aggre- gate Limit shown in the Declarations. 2. The Designated Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under Coverage A, except damages because of "bodily injury" or "property damage" included iii the "prod- ucts-completed operations hazard", and for medical expenses under Coverage C regard- less of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 3. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the Designated Con- struction Project General Aggregate limit for that designated construction project. Such payments sl1all not reduce the General Ag- gregate Limit shown in the Declarations nor shall they reduce any other Designated Con- struction Project General Aggregate Limit for any other designated construction project shown in the Schedule above. 4. The limits shown in the Declarations for Each Occurrence, Damage To Premises Rented To You and Medical Expense contin- ue to apply. However, instead of being sub- ject to the General Aggregate Limit shown in the Declarations, such limits will be subject to the applicable Designated Construction Project General Aggregate Limit. B. For all sums which the insured becomes legally obligated to pay as damages caused by "occur- rences" under Section I -Coverage A, and for all medical expenses caused by accidents under Section I -Coverage C, which cannot be attrib- uted only to ongoing operations at a single des- ignated construction project shown in the Schedule above: 1. Any payments made under Coverage A for damages or under Coverage C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-completed Operations Aggregate Limit, whichever is applicable; and 2. Such payments shall not reduce any Desig- nated Construction Project General Aggre- gate Limit. C. When coverage for liability arising out of the "products-completed operations hazard" is pro- vided, any payments for damages because of "bodily injury" or "property damage" included in the "products-completed operations hazard" will reduce the Products-completed Operations Ag- gregate Llmit, and not reduce the General Ag- gregate Limit nor the Designated Construction Project General Aggregate Limit. CG 25 03 05 09 © Insurance Services Office, Inc., 2008 Page 1 of 2 0 D. If the applicable designated construction project has been abandoned, delayed, or abandoned and then restarted, or if the aLJthorized contract- ing parties deviate from plans, blueprints, de- signs, specifications or timetables, the project will still be deemed to be the same constrnction project. E. The provisions of Section Ill -Limits Of Insur- ance not otherwise modified by this endorse- ment shall continLJe to apply as stipulated. Page 2 of 2 © lnslJrance Services Office, Inc., 2008 CG 26 03 05 09 0 POLICY NUMBER: CA 6579259 COMMERCIAL AUTO CA 20 48 02 99 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are "insureds" under the Who Is An Insured Provi- sion of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indi- cated below. Endorsement Effective: 04/01/2015 Countersigned By: Named Insured: Desilva Gates Construction, LP (Authorized Representative) SCHEDULE Name of Person(s) or Organization(s): Any person or organization whom you become obligated to include as an additional insured as a result of any written contract or agreement you have entered into (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement.) Each person or organization shown in the Schedule is an "insured" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured Provision contained in Section II of the Coverage Form. CA 20 48 02 99 Copyright, Insurance Services Office, Inc., 1998 Page 1of1 D Policy Number: CA 6579259 Effective: 4/1/2015 Expiration: 4/1/2016 under this coverage form until: a. There has been full compliance with all the terms of this coverage form; and b. Under Liability Coverage, we agree in writing that the "insured" has an obliga- tion to pay or until the amount of that obligation has finally been determined by judgment after trial. No one has the right under this policy to bring us into an ac- tion to determine the "insured's" liability. 4. Loss Payment -Physical Damage Coverages At our option we may: a. Pay for, repair or replace damaged or stolen property; b. Return the stolen property, at our ex- pense. We will pay for any damage that results to the "auto" from the theft; or c. Take all or any part of the damaged or stolen property at an agreed or appraised value. If we pay for the "loss", our payment will include the applicable sales tax for the damaged or stolen property. 5. Transfer Of Rights Of Recovery Against Others To Us If any person or organization to or for whom we make payment under this coverage form has rights to recover damages from another, those rights are transferred to us. That person or organization must do everything necessary to secure our rights and must do nothing after "accident" or "loss" to impair them. B. General Conditions 1 . Bankruptcy Bankruptcy or insolvency of the "insured" or the "insured's" estate will not relieve us of any obligations under this coverage form. 2. Concealment, Misrepresentation Or Fraud This coverage form is void in any case of fraud by you at any time as it relates to this coverage form. It is also void if you or any other "insured", at any time, intentionally conceal or misrepresent a material fact concerning: a. This coverage form; b. The covered "auto"; c. Your interest in the covered "auto"; or d. A claim under this coverage form. 3. Liberalization If we revise this coverage form to provide more coverage without additional premium charge, your policy will automatically pro- vide the additional coverage as of the day the revision is effective in your state. 4. No Benefit To Bailee -Physical Damage Coverages We will not recognize any assignment or grant any coverage for the benefit of any person or organization holding, storing or transporting property for a fee regardless of any other provision of this coverage form. 5. Other Insurance a. For any covered "auto" you own, this coverage form provides primary insur- ance. For any covered "auto" you don't own, the insurance provided by this cov- erage form is excess over any other collectible insurance. However, while a covered "auto" which is a "trailer" is connected to another vehicle, the Liability Coverage this coverage form provides for the "trailer" is: (1 I Excess while it is connected to a motor vehicle you do not own. (2) Primary while it is connected to a covered "auto" you own. b. For Hired Auto Physical Damage Coverage, any covered "auto" you lease, hire, rent or borrow is deemed to be a covered "auto" you own. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto". c. Regardless of the provisions of Paragraph a. above, this coverage form's Liability Coverage is primary for any liability assumed under an "insured contract". d. When this coverage form and any other coverage form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the proportion that the Limit of Insurance of our coverage form bears to the total of the limits of all the coverage forms and policies covering on the same basis. 6. Premium Audit a. The estimated premium for this coverage form is based on the exposures you told us you would have when this policy began. We will compute the final pre- mium due when we determine your actual exposures. The estimated total premium will be credited against the final premium due and the first Named Insured will be billed for the balance, if any. The due date for the final premium or retrospective premium is the date shown as the due date on the bill. If the estimated total premium exceeds the final premium due, the first Named Insured will get a refund. b. If his policy is issued for more than one year, the premium for this coverage form will be computed annually based on our Page 8 of 11 @ Insurance Services Office, Inc., 2009 CA 00 01 03 10 D ENDORSEMENT This endorsement, effective 12:01 A.M. 04/01/2015 forms a part of Policy No. CA 657-92-59 issued to DE SILVA GATES CONSTRUCT I ON, LP by NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. EARLY NOTICE OF CANCELLATION PROVIDED BY US This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM; TRUCKERS COVERAGE FORM GARAGE COVERAGE FORM Common Policy Conditions, A. Cancellation, 2. is amended to read: 2. We may cancel this policy by mailing or delivering to the first Named Insured written notice of cancel- lation at least: a. TEN 1 0 ) days before the effective date of cancellation if we cancel for nonpayment of premium; or b. SIXTY 60 ) days before the effective date of cancellation if we cancel for any other reason. ATHORIZED REPRESENTATIVE 62138 (3/95) BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT -CALIFORNIA This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following" attaching clause" need be completed only when this endorsement is issued subsequent to preparation of the policy). This endorsement, effective 12:01 AM 04/01/1s Issued to DeSilva Gates Construction, LP By NATIONAL UNION FIRE INS CO OF PITTS forms a part of Policy No. wc 67712764 We have a right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against any person or organization with whom you have a written contract that requires you to obtain this agreement from us, as regards any work you perform for such person or organization. The additional premium for this endorsement shall be 2% of the total estimated workers compensation premium for this policy. WC 04 03 61 (Ed.11-90) Countersigned by _________________ _ Authorized Representative