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17-009 JJR Construction Inc., 2017 CDBG City-Wide Curb Ramps Installation, Project No. 2017-109DOCUMENT 00650 AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS 2017 CDBG CITY-WIDE CURB RAMP INSTILLATION PROJECT NUMBER 2017-109 Project No. 2017-109 THIS AGREEMENT AND RELEASE OF ANY AND ALL CLAIMS ("Agreement and Release"), made and entered into this 22nd day of June, 2017, by and between the City of Cupertino ("City"), and J.J.R Construction, Inc. ("Contractor''), whose place of business is at 1120 Ninth Avenue, San Mateo, CA 94402. RECITALS A. City and Contractor entered into Contract Number 2017-399 (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 $ 223,100.00 $229,113 .5 0 $ 217,657.82 $0 $ 11,455 .68 2. Subject to the provisions of this Agreement and Release, City will forthwith pay to Contractor the sum of $Thirty -Six Thousand, Five Hundred Twenty-Seven Dollars and Seventy-Five Cents ($36,527.75) 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 parties 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. City of Cupertino 00650 -I Agreement and Release of Any and All Claims 2017 CDBG City-Wide Curb Ramp Installation Project No .2017-109 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 5. Consistent with California Public Contract Code Section 7100, Contractor hereby agrees that , in consideration of the payment set forth 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 a ny of Contractor's suppli ers 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 his 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 part thereof shall 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 of Cupe1tino Agreement and Release of Any and All Claims 2017 CDBG City-Wide Curb Ramp Installation 00650 -2 * * * CAUTION: THIS IS A RELEASE -READ BEFORE EXECUTING * * * THE CITY OF CUPERTINO, a Municipal Corporation of the State of California By:~~ Name: Timm Borden Its: Director of Public Works By=--------=~----- Name: -----~"----------- Its: ____ / __________ _ REVIEWED AS TO FORM: \~ [City Attorney] END OF DOCUMENT Project No . 2017-109 City of Cupertino 00650-3 Agreement and Release of Any and All Claims 2017 CDBG City-Wide Curb Ramp Insta llation RECORDING REQUESTED BY City of Cupertino WHEN RECORDED MAIL TO C ity C lerk's Office Ci t y of Cupertino 10300 Torre A venue Cupertino, CA 95014-3255 NO FEE IN ACCORDANCE WITH GOV. CODE 27283 23617346 Regina Alcomendras Santa Clara County -Clerk-Recorder 04/05/2017 01:26 PM Ti lies: 1 Fees : 10.00 Taxes: 0 Total : 0.00 Pages: 3 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) NOTICE OF COMPLETION CITY PROJECT NAME: 2017 CDBG City-Wide Curb Ramp Installation Project No. 2017-109 ~ Original 0 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 No tic e of Completion dated April 5, 2017 for CITY PROJECT NAME: 2017 CDBG City-Wide Curb Ramp Installation Project No. 2017-109 and the City of Cupertino, a governmental agency is h ereby accepted by the City of Cupertino on April 5, 2017 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: April 5, 2017 By: ~iA~ Lauren Sapudar Senior Office Assistant CUPERTINO Recording Requested By: When Recorded Mail To : City of Cupertino 10300 Torre Ave . Cupertino, 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 Cupertino, California . 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 Ownership _ l.,essee _X_ Other: Right-of-Way 5. Construction work on the project performed on the owner's behalf is generally described as follows : City Project Name: 2017 CDBG City-Wide Curb Ramp Installation City Project No.: 2017-109 6. The name of the original contractor for the project is : JJR Construction, Inc . 7. The project was completed on: March 31, 2017 . 8 . The project is located at: Various locations in Cupertino, CA. Verification : In signing this document , I, the undersigned, declare under penalty of perjury under the laws of the State of California 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 and correct. 4 /q/17 ; Santa Clara County ~,.._ __ Date and Place Signature Timm Borden Director of Public Works and City Engineer ' " DOCUMENT 00520 CONTRACT THIS CONTRACT, dated this 25 day of January, 2017, by and between J.J.R Construction,Inc., whose place of business is located at 1120 Ninth Avenue, San Mateo, CA 94402 ("Contractor"), and the CITY OF CUPERTINO, a Municipal Corporation of the State of California ("City") acting under and by v irtue of the authority vested in the City by the Jaws of th e State of California . WHEREAS , City, on the 25 day of January, 2017 awarded to Contractor the following Project: PROJECT NUMBER 2017-109 2017 CDBG CITY-WIDE CURB RAMPS INSTILLATION NOW, THEREFORE, in co ns id eration of the mutual covenants hereinafter set forth, Co ntractor 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 David Stillman, Senior Civil Engineer, 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 obligatio ns to City, including without limitation , all releases and indemnities. 2.2 All notices or demand s to City under the Contract Documents shall be to C ity '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 after the Notice of Award. 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 Comp letion of the entire Work and be ready for Fina l Payment in accordance with Section 00700 (General Provisions) by June 30 , 2017 as provided in Document 00700 (General Provisions) 3.2 Liquidated 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 a s project management and consultant expenses), if all or any part of the Work is not completed within the times specified above , plus any exten sions 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 de lay 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 $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. 3.2.2 $75 per Calendar Day for fai lure to remove concrete from a work area within the same calendar week . 3.2 .3 $75 per Calendar Day for failure to replace asphalt to finish grade within 30 calendar days . 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 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 reports, available for Bidding purposes , of physical conditions, including Underground Facilities, or which may appear in the Drawings . Contractor accepts the determination set forth 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 rel y. Contractor agrees that except for the information so ident ified , 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 , reports 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 ha s correlated its knowledge and the result s of all such observations, examinations , investigations, explorations, test s, report s and studies with the term s and conditions of the Contract Documents. 5 .5 Contractor has given City prompt written notice of all conflicts, errors, 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: Document 00002 Signature Page Document 00003 Project Directory Document 00100 Advertisement For Bids Document 00200 Instructions to Bidders Document 00210 Indemnity and Release Agreement Document 00400 Bid Form 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 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 Cont~ol Requirement s Document 00821 Insurance Document 00822 Apprenticeship Program Document O 1010 Technical Specifications Addenda(s) 6 .2 There are no Contract Documents other than those listed in thi s 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 Provi sions) 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 further 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 portions 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, serv ices or material s 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 Cartwright 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 further acknowledgment by the parties . 7.6 Co pies 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 Department 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/Northem.html and shall be made available to any interested party on request. Pursuant to Section 1861 of the Labor Code, Contractor represents that it is aware of the provisions of Section 3700 of the Labor Code w hich require every employer to be insured against liability for workers ' compensation or to undertake self-in surance in accordance with the provisions of that Code, and Co ntractor shall comply with such provisions before commencing the performance of the Work of the Contract Documents . 7 .7 Should any part, term or provision of thi s Contract or any of the Contract Documents, or any document required herein or therein to be executed or delivered , be dec lared 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 th e provisions of any law causing such invalidity, illegality or unenforceability may be waived , they are hereby waived to the end that thi s 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 law , 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 pro visio n 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 C alifornia 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. Co ntractor accepts the Claims Procedure in Document 00700 , Article 12 , established under the California Government Co de, Title I, Division 3 .6, Part 3 , Chapter 5. IN WITNESS WHEREOF the parties have executed this Contract in triplicate the day and year first above written. 2017 CDBG CITY-WIDE CURB RAMPS INSTILLATION CITY: CITY OF CUPERTINO, a Municipal Corporation of the State of California Attest: ~~Ma erCci~ chmidt ~ r r--Jo--( 1. Approved as to form by City Attorney: ~ City Attorney: Randolph Hom I hereby certify, under penalty of perjury , that Timm Borden, Director of Public Works of the City of Cupertino was duly authorized to execute this document. w::1L David Brandt, City Manager of the City of Cupertino, a Municipal Corporation of the State of California Designated Representative: Name: David Stillman Title : Senior Civil Engineer Address: I 0300 Torre Ave., Cupertino, CA 95014 Phone: 408-777-3249 Facsimile: 408-777-3354 AMOUNT: ACCOUNT NUMBER: FILE NO.: a_.c..,o .-:r-~. ~ "" ~:rd X'L tE. 'z,ov -~ -:r l coNTRAcToR: .f J 12 CC?J 5 rR. tJCT/ Cr?J I J;, [Please print name here f By: _______________ _ [Signature] [Please print name here] Title: ________________ _ [If Corporation: Secretary , Assistant Secretary, Chief Financial Officer, or Assistant Treasurer] ))' State Contractor's License No . Classification ~/4//;z Expiiftioo 115te Taxpayer ID No .__,_~--'-~--_'3_/_7_/;_Y_~_,2 __ Name: 6otz.l12r ~CJ.fl) Title: JJ,., r. <t,,./, 1Lc. k'e ,,.rvre, • 7 ' 7 Address : /1.lO J,arl; Mt / k ~rr121 (; 9y'~()~ Phone: 6'S'tJ .3y'3t,/() 9 > Facsimile: l?S-0 3 1/3 G ,2 0 7 NOTARY ACKNOLEDGEMENT IS REQUIRED. IF A CORPORATION, CORPORATE SEAL AND CORPORATE NOTARY ACKNOWLEDEMENT AND FEDERAL TAX ID ARE REQUIRED. IF NOT A CORPORATION SOCIAL SECURITY NO. IS REQUIRED A notary public or other officer compl eting this certificate verifies only the identity of the ind ividua l who signed the document to whic h this certificate is attached, and not the truthfulness , accuracy, or validity of that document. State of Califo,i;nia I tlrl'"c11 ) County ofSft/4! Mrr LCIU' ) on ' 61 I I ( 7 fl-bet:ore me, Alex_is Gar?ota' Roman, Notary ... Pub!ic r r _ . . Date · Here Insert Name and Title of the Officer personally appeared CARLOS RAPQSQ i Name(ef of Signer(ef who proved to. me on 'the basis of satisfactory evidence to be \he person(~ wh ose name(s(is/~ subscribed to the wi t hin instrumen t and acknowledged to me that he/srz,e/t~y executed the same in his~r/~ir authorized capacity(ie~, and that by his/hpr/th¢ signature~ on the instrument the person(¢, or t'he entity upon behal-f of which the person(~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. · a11 11111111111111111111111111111111111111111111111111111111111111111111 11 11111111111111111 11 ! /, .. ;, ALEX~~~!.~~W0f2~MAN I ~ NOTARY PUBLIC· CALIFORNIA ;:: i§ , ALAMEDA COUNTY ~ § Mv Comm . Eicp. Sept. OS, 2018 § i11111111111111111i'1111111u111111111111111ii111u1111111111111111i11111111111111111111111i Place Notary Seal Above ==-===========-OPTIONAL==========-== Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description o1i' Attached Document Title or Type of Document: _____________ Document Date: _______ _ Number of Pages: ___ Sign~r(s) Other Than Named Above: ____________ _ Caipacity{ies) Cffaimedl foy Signer(s) Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General fJ In dividual D Attorney in "Fact D Trustee D Guardian or Conservator 0 Other: ______________ _ Signer Is Representing: _________ _ Signer's Name: _____________ _ D Corporate Officer -Title(s): ----·--- LJ Partner -O Limited D Genera! D l'ndividua! D Attorney in Fact D Trustee D Guardian or Conservator D Oth er: _______________ _ Signer Is Rep re senting: ____ _ .R-,~~~~~~~,,.-g,~~~~~-,~~~~~~~'0W.:,,~4,g;c, ©2 014 National Notary Association • www .NationafNotary.org • 1-800-US NOTARY (1 -8 00 -8 76-6827) Item #5907 Exhibit A SCHEDULE OF BID PRICES Project No. 2017-109 All Bid items, including lump sums and unit prices, must be filled in completely. Quote in figures only, unless words are specifically requested. Specialty Items are identified on the Bid Form in the description. Remove and Replace Sidewalk {1 -19) 2 Remove and Replace Curb & Gutter (l-16 Type A2-6 orT E) 3 Remove Parle Strip Improvements 4 Depressed Curb Ramp (Caltrans Type B) 5 Depressed Curb Ramp (Caltrans Type C) 6 Depressed Curb Ramp (Caltrans Type F) 7 Asphalt Replacement (6" Placement) Unit Legend LS= Lump Sum EA= Each LF = Linear Feet TON= Ton or 2,000 Pounds CY = Cubic Yards LB= Pounds City of Cupertino 00400 -4 2017 CDBG City-Wide Curb Ramp Installation Project S.F. L.P. S.F. EA EA EA TN 1400 600 350 20 14 16 50.1 AL = Allowance SF= Square Feet Bid Forni DOCUMENT 00610 CONSTRUCTION PERFORMANCE BOND Bond No.: 1538496 Premium: $3,570.00 Project No. 2017-109 THIS CONSTRUCTION PERFORMANCE BOND ("Bond") is dated January 25, 2011 is in the penal sum of Two hundred twenty three thousand one hundred and N0/100 ($223,100.00) -----------------------[which is one hundred percent of the Contract Price], and is entered into by and between the parties listed below to ensure the faithful performance of the Construction Contract listed below. This Bond consists of this page and the Bond Terms and Conditions, paragraphs I through 12 , attached to this page. Any singular reference to JJR Construction, Inc. ("Contractor"), Great American Insurance Company ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR: IJR Construction, Inc. Name 1120 Ninth Avenue Address San Mateo, CA 94402 City/State/Zip CONSTRUCTION CONTRACT: SURETY: Great American Insurance Company Name 301 E. Fourth Street Principal Place of Business Cincinnati, OH 45202 City/State/Zip 2017 CDBG CITY-WIDE CURB RAMP INSTALLATION PROJECT NUMBER 2017-109 at Cupertino , California. DATED January 25 , 20_l_Z_ in the Amount of$~2~3~3~,~IO~O~·~O~O _______ (the "Penal Sum ") CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) J Signature: /:¼,./.4,,£../ ~"'f'. Name and Title: Carlos Raposo President Name and Title : James W. Gervang Attorney-in-Fact BOND TERMS AND CONDITIONS I. Contractor and Surety, jointly and severally, bind them se lves, 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 perform s 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 20 17 CDBG Curb Ramps 00610 -I Project No . 2017-001 3.2.2 To a contractor se lected 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 paragrap h 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 paragrap h 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 le ga l, design professional and delay costs resulting from Contractor Default or resulting from the actions or failure to act of the Surety und er paragraph 4 , above (but excluding attorney 's fees incurred to enforce this Bond). City of Cupertino Co nstruction Performance Bond 2017 CDBG Curb Ramps 00610 -2 Project No . 2017-I 09 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. I 0. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract). Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as of the date received at the foregoing addresses. 11 . Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein. 12. Definitions. 12.1 Balance of the Contract Sum: The total amount payable by City to Contractor pursuant to the terms of the Construction Contract after all proper adjustments have been made under the Construction Contract, for example, deductions for progress payments made, and increases/decreases for approved modifications to the Constru ction 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 te1ms 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 2017 CDBG Curb Ramps 00610 -3 CALIFORNIAALL-PURPOSEACKNOWLEDGMENT 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, or validity of that document. STATE OF CALIFORNIA } County of Contra Costa ---=-===--=c"-"--"=------------ On __,_,Ja=n=u=a=ry-+-=2=5~, =2~0=17~--before me, __ C_a_th_y_,__A_._S_h_a..._p_a_rd ___________ , Notary Public, Date In sert Nam e of Notary exactly as it appears on the official seal personally appeared James W. Gervang CATHY A. SHAPARD Commis sion # 2134 146 < ·• Not ary Public -California ~ z · > z ,. Contr a Costa County -J. ; ~ • • ,Ml ~o~ri; [x~rts pe; 14,}&1 d Place Notary Seal Ab ove Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the perso~ whose name(.st is/ai=e· subscribed to the within instrument and acknowledged to me that he/sl:lefti'tey executed the same in his/ASFl#teir authorized capacity([%), and that by his/l:l.etitl:leir signature(.s?" on the instrumenf the person{s), or the entity upon behalf of which the person(P1 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 . Signature e~ a_, ~GA.ti SignatweofN ~ Public I OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document. Description of Attached Document Title or Type of Document: Performance Bond ------------------------------- Document Date: January 25, 2017 Number of Pages: 3 --------- Signer(s) Other Than Named Above: -~J~JR_C_o_n_s_t_r_u_ct_i_o_n_, _ln_c_. ________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name : James W. Gervang D Individual D Corporate Officer -Title(s): ________ _ D Partner D Limited D General [X Attorney in Fact D Trustee D Guardian or Conservator D Other: ______ _ Signer is Representing: Great American Insurance Company RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: _____________ _ D Individual D Corporate Officer -Title(s): ________ _ D Partner D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: ------- Signer is Representing : RIGHT THUMBPRINT OF SIGNER Top of thumb here DOCUMENT 00620 Bond No.: 1538496 Premium: Included in Performance Bond Project No . 2017-109 CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND THIS CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND ("Bond") is dated January 25, 2017 is in the penal sum Two hundred twenty three thousand one hundred and N0/100 ($223,100.00) [ one hundred percent of the Contract Price], and is entered into by and between the parties listed below to ensure the payment of claimants under the Construction Contract listed below. This Bond consists of this page and the Bond Terms and Conditions, paragraphs I through 14 , attached to this page. Any singular reference to JJR Construction, Inc. ("Contractor"), Great American Insurance Company ("Surety"), the City of Cupertino, a Municipal Corporation of the State of California ("City") or other party shall be considered plural where applicable. CONTRACTOR: JJR Construction, Inc. Name J J 20 Ninth Avenue Address San Mateo, CA 94402 City/State/Zip CONSTRUCTION CONTRACT: SURETY: Great American Insurance Company Name 301 E. Fourth AStreet Principal Place of Business Cincinnati, OH 45202 City/State/Zip 2017 CDBG CITY-WIDE CURB RAMP INSTALLATION PROJECT NUMBER 2017-109 at Cupertino, California. DATED January25 CONTRACTOR AS PRINCIPAL Company: (Corp. Seal) Name and Title: Carlos Raposo President , 20.l2...__ in the Amount of$_2_2_3~,_l_OO_._O_O _______ (the "Penal Sum") SURETY Company : (Corp ,Seal) ) ~ Signature: --~~~~=--<ve+J ............ a ........... ~~----- Name and Title: James W. Gervang Attorney-in-Fact BOND TERMS AND CONDITIONS 1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference. 2. With respect to City, this obligation shall be null and void if Contractor: 2.1 Promptly makes payment, directly or indirectly , for all sums due Claimants; and 2.2 Defends, indemnifies and holds harmless City from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contact, provided City has promptly notified Contractor and Surety (at the address set forth on the signature page of this Bond) of any claims, demands, liens or suits and tendered defense of such claims, demands , liens or suits to Contractor and Surety, and provided there is no City Default. City of Cupertino 00620 -1 Construction Labor and Material Payment Bond 2017 CDBG City-Wide Curb Ramp Installation Project No. 2017-00 I 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 California Civil Code, or amounts due under the Unemployment Insurance Code with respect to Work or labor performed under the Contract, or for any amounts required to be deducted, withheld , and paid over to the Employment Development Department from the wages of employees of Contractor or Subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to such Work and labor, then Surety shall pay for the same, and also , in case suit is brought upon this Bond , a reasonable attorney 's fee , to be fixed by the court. 4 . Consistent with the California Mechanic 's Lien Law , Civil Code §3082, et seq., Surety shall have no obligation to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements. 5 . Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by Surety under this Bond . 6 . Amounts due Contractor under the Construction Contract shall be applied first to satisfy claims, if any , under any Construction Performance Bond and second , to satisfy obligations of Contractor and Surety under this Bond. 7. City shall not be liable for payment of any costs, ex penses, or attorney 's fees of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to , give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 8. Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. Surety further hereby stipulates and agrees that no change, extension of time , alteration or addition to the terms of the Construction Contract, or to the Work to be performed thereunder, or materials or equipment to be furnished thereunder or the Specifications accompanying the same, shall in any way affect its obligations under this Bond, and it does hereby waive any requirement of noti ce or any such c ha nge, extens ion of time , a lt eration or additi on to th e terms of the Construction Contract or to the Work or to th e Specifications or any other changes. 9 . Suit against Surety on this Bond may be brought by any Claimant, or its assigns , at any time after the Claimant has furnished the last of the labor or materials , or both , but, per Civil Code §3249, must be commenced before the expiration of six months after the period in which stop notices may be filed as provided in Civil Code §3184. I 0. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Contract). Actual receipt of notice by Surety, City or Contractor, however accomplished , shall be sufficient compliance as of the date received at the foregoing addresses. 11 . This Bond has been furnished to comply with the California Mechanic 's Lien Law including, but not limited to , Civil Code §§3247 , 3248 , et seq. Any provision in this Bond conflicting with said statutory requirements shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirements shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 13 . Contractor shall pay to persons performing labor in and about Work provided for in the Contract Documents an amount equal to or more than the general prevailing rate of per diem wages for (I) 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 City of Cupertino 00620 -2 Construction Labor and Material Payment Bond 2017 CDBG City-Wide Curb Ramp Installation Project No. 2017-109 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. 14 . Definitions . 14.1 Claimant: An individual or entity having a direct contract with Contractor or with a Subcontractor of Contractor to furnish labor, materials or equipment for use in the performance of the Contract, as further defined in California Civil Code §3181. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the Work of Contractor and Contractor's Subcontractors, and all other items for which a stop notice might be asserted. The term Claimant shall also include the Unemployment Development Department as referred to in Civil Code §3248(b). 14 .2 Construction Contract: The contract between City and Contractor identified on the signature page of this Bond, including all Contract Documents and changes thereto . 14.3 City Default: Material failure of City, which has neither been remedied nor waived , to pay the Contractor as required by the Construction Contract, provided that failure is the cause of the failure of Contractor to pay the Claimants and is sufficient to justify termination of the Construction Contract. END OF DOCUMENT City of Cupertino 00620 -3 Construction Labor and Material Payment Bond 2017 CDBG City-Wide Curb Ramp In stallation CALIFORNIAALL-PURPOSEACKNOWLEDGMENT 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, or validity of that document. STATE OF CALIFORNIA } County of Contra Costa __ ...=.:==c..=:==------------ On ~Ja=n=u=a=ry+--=2=5=,~2=0~1~7 __ before me, ---=C=-=a=t=h.,_y-=-A=·--=S=h=a:£p--=a=--rd=-------------, Notary Public , Date Insert Name of Notary exactly as it appears on the official seal personally appeared ___ ___.J'--'-a'----m_e-'---s~W~._G__.c_erv"--'--'a'""n_..g,___-----,,,------;-;-;--;,.,.-----;-;-------------- Name(s) of Slgner(s) CATHY A. SHAPARD Comm ission # 2134146 ~ Not ar y Public • California ~ z Con t ra Costa County ~ J. ; •••• M'J. S0Tn; tx~r:s Be; b\2~1d Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person,M whose name~is/ai:e subscribed to the within instrument and acknowledged to me that he/&Re41:ley executed the same in his/her/their authorized capacity(i~, and that by his/herft+ieir signaturewon the instrument the person~ or the entity upon behalf of which the person(M' 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. Signature ~~ a ~&f. Si~EltGrecio ry PubTic ' OPTIONAL Though the information below is not required by lawd it may prove valuable to persons relying on the document and could prevent fraudulent removal an reattachment of the form to another document. Description of Attached Document Title or Type of Document: Payment Bond ----~-------------------------- Document Date: January 25, 2017 Number of Pages: -----'3=---------- Signer(s) Other Than Named Above: -----'-J-=---JR_C_o_n_s_t_r_u_ct_i_o_n""'", _ln_c. ________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name : James W. Gervang D Individual D Corporate Officer -Title(s): ________ _ D Partner D Limited D General [X Attorney in Fact D Trustee D Guardian or Conservator D Other: ______ _ Signer is Representing : Great American Insurance Company RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: --------------0 Individual D Corporate Officer -Title(s): ________ _ D Partner D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: ______ _ Signer is Representing : RIGHT THUMBPRINT OF SIGNER Top of thumb here GREAT AMERICAN INSURANCE COMPANY® Administrative Office: 301 E 4TH STREET • CINCINNATI, OHIO 45202 • 513-369-5000 • FAX 513-723-2740 The number of persons authori zed by this power of attorney is not more than FOUR No. 0 15021 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That the GREAT AMERICAN INSURANCE COMPANY, a corporation organized and ex istin g under and by virtue of the laws of the State of Ohio, does hereby nominate, constitute and appoint the person or persons named below, each individually if more than one is named, its true and lawful attorney-in-fact, for it and in its name, place and ste ad to execute on behalf of th e sa id Company, as surety, any and a ll bonds, undertakings and contracts of suretyship, or other written obligations in the nature th ereof; provided that the liability of the said Company on any such bond , undertaking or contract of s uretysh ip executed under this authority shall not exceed the limit stated below. JOHN F. ARENTS MARK C. JOHNSON Name CECIL A. COLLINS Ill JAMES W . GERVANG Address ALL OF CONCORD, CALIFORNIA Limit of Power ALL $100,000,000.00 This Power of Attorney revokes all previous powers issued on behalf of the attomey(s)-in-fact named above . IN WITNESS WHEREOF the GREAT AMERICAN INS URANCE COMPANY has caused these presents to be s igned and attested by its appropriate officers and it s corporate seal hereunto affixed this 21 ST day of APRIL , 2016 Attest GREAT AMERICAN INSURANCE COMPANY ,4-c c. :E_ ~"~ /Litk, Assistant Secreta,y Divis ion al Senior Vice President STATE OF OHIO, COUNTY OF HAMILTON -ss: DAVID c. KITCHIN (877-377-2405) On this 21ST day of APRIL , 2016 , before me personally appeared DAVID C. KITCHIN , to me known, being duly sworn, deposes and says th at he resides in Ci ncinn ati, Ohio, that he is a Divisional Senior Vice President of the Bond Division of Great American Insurance Company, the Company described in and which executed the above instrument; that he knows the seal of the said Co mpan y ; that the seal affixed to the said instrument is such corporate seal ; that it was so affixed by a uthori ty of his office under the By-Laws of said Co mpan y, and that he signed hi s name thereto by like authori ty . • - This Power of Attorney is granted by authority of the following resolution s adop ted by the Board of Directors of Great American In surance Company by unanimous written consent dated June 9, 2008. RESOLVED: That the Divisional President, the several Divisional Senior Vice Presidents, Divisional Vice Presidents and Divisonal Assistant Vice Presidents, or any one of them , be and hereby is authorized, from time to time , to appoint one or more Attorneys-in-Fact to execute on behalf of the Company, as surety, any and all bonds, undertakings and contracts o/suretyship, or other written obligations in the nature thereof; to prescribe their respective duties and the respective limits of their authority; and to revoke any such appointment at any time. RESOLVED FURTHER: That the Company seal and the signature of any of the aforesaid officers and any Secreta,y or Assistant Secreta1y of the Company may be affixed by facsimile to any power of attorney or certificate of either given for the ex ecution of any bond, undertaking, contract of suretyship, or other written obligation in the nature thereof, such signature and seal when so used being hereby adopted by the Co mpany as the original signature of such officer and the original seal of the Co mpany, to be valid and binding upon the Company with the same force and effect as though manually affixed. CERTIFICATION I, STEPHEN C. BERAHA, Ass istant Secretary of Great American Insurance Company, do hereby certify that the foregoing Power of Attorney and the Resolutions of the Board of Directors of June 9, 2008 have not been revoked and are now in full force and effect. Signed and sealed this 25th day of January ,20 17 ,4-c C. :E_ ____ _,., _ Assistal11 Secreta1y S1029AF (06/15)