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Agr 1998-11-16 (Maggiora & Ghilotti)
fz-~ TOWN OF T I B U R O N 1505 TIBURON BOULEVARD TIBURON CALIFORNIA 94920 (415) 435-7373 FAX (415) 435-2438 December 17, 1998 Gary Ghilotti, President Maggiora & Ghilotti 555 DuBois Street San Rafael, CA 94901 SUBJECT: EXECUTED CONTRACT DOCUMENTS - ELEPHANT ROCK REHABILITATION PROJECT Dear Mr. Ghilotti: Enclosed for your files is a complete set of executed contract documents for the above project which was awarded to your firm on November 16, 1998. Thank you for your cooperation in this matter, and happy holidays to you and your family. Very truly yo rs, i Diane L. Crane Town Clerk Enclosures cc: Town Manager Town Attorney Town Engineer Finance Director (w/enclosures) aia ~ i SECTION 4 TOWN OF TIBURON TIBURON, CALIFORNIA TOWN-CONTRACTOR AGREEMENT FOR THE ELEPHANT ROCK FISHING PIER REHABILITATION PROJECT THIS TOWN-CONTRACTOR AGREEMENT ("Agreement') is made and entered into this 16th day of November , 1998, by and between the TOWN OF TIBURON, a municipal corporation, 1505 Tiburon Boulevard, Tiburon, CA 94920, ("Town') and giora & Ghilotti whose principal place of business is 555 Dubois Street, San Rafael,- ("Contractor"). CA 94901 In consideration of the mutual covenants and agreements set forth herein, Contractor and the Town hereby agree as follows: ARTICLE I CONSTRUCTION Subject to and in accordance with the terms of this Agreement, the Contractor shall do all the Work and furnish all the labor, services, materials and equipment necessary to construct and complete, in accordance with the Contract Documents (as hereinafter defined) in a good, workmanlike and substantial manner and to the satisfaction of the Town upon that real property located in the Town which is more particularly described in Exhibit A. The Project is that described and reasonably inferable from the drawings, specifications and CALTRANS Standard Specifications, and other documents enumerated in these provisions. Such construction and furnishing of labor, services, materials and equipment and the performance of Contractor's other services and obligations required by the Contract Documents are hereinafter referred to as the "Work." The term "Contract Documents" shall mean this Agreement, and all of the items enumerated in these provisions. ARTICLE H CONTRACT SUM The Town shall pay and Contractor shall accept as full compensation for the work the sum ("Contract Sum") set forth in the Bid Proposal. ARTICLE III TIME FOR PERFORMANCE Section 3.1. Definitions. As used in this Agreement: The term "Completion Date" shall mean the date that all the Work is substantially complete. 4-1 The term "Direct Costs" shall mean the premium portion of overtime pay, additional crew, shift or equipment cost and such other items of cost requested in advance by Contractor and approved by the Town, which approval shall not be unreasonably withheld. The term "Excusable. Delay" shall mean an actual delay in the performance of the Work by Contractor caused by any of the following if such events are beyond the reasonable control of Contractor despite having taken all reasonable'attempts to prevent, avoid delay and mitigate the effects thereof, and as set forth in the General Conditions. A. act or omission of the Town, or by an employee, agent, or representative of the Town (other than by reason of the proper exercise of their. respective rights, duties, and obligations under the Contract p Documentsor B. fire, f lood, unusually severe. and abnormal weather conditions beyond the anticipated average number of rain days per year over a ten (10) year period based ©n historic weather data, war,' embargo, . sabotage, hurricane, earthquake,,tornado or by injunction (not the fault of Contractor) (see Article XVII of the General Conditi6iis) or ' C. general strike, regulatory delays, strikes in or losses during transportation, or other similar event which is beyond Contractor's control. The Contractor acknowledges that actual delays in activities that do not affect the completion time ("non- critieal,deiays") do.not have any effect upon the Scheduled Completion Date .or the Interun Completion Date, and therefor, will not constitute an "Excusable Delay" nor be a basisfor'changing the Scheduled Completion Date or the Interim Completion Date. The Contractor acknowledges` that time';extensons'will be grarited`only to the extent that Excusable DelaYs exceed the available float in the roject Schedule, and in accordance' with the provisions of the General Conditions that are not in conflict with the provisions 'of this Article III. The term "Final Completion" shall mefin'tlie completion of all 'the Work including punch list items, as set- forth in the General Conditions. The term "Notice to Proceed" shaft have the meaning describedan section 3.2 `of thus`Agreement. The term "Scheduled Completion Date" shall mean and refer to the date set forth by Section 3.2 below, as such date may, be extended pursuant to Section 3.3 below, nor by change order. The term "Project"• shallhave the same- meaning as the term "Work" as defined in the General Conditions. The terms "Substantial Completion"rand "Substantially Complete" shall have the mening'set forth in Article XII ofthe-General'Conditons.' - Section 3.2. A.Schedule d Completion Date , Time is of the essence in this Agreement. Contractor shall commence performance of Work within 5'work working days from the date of a written notice from the Town to Contractor to proceed {"Notice to Proceed'. Contractor shall diligently proceed - th performance of-the Work and agrees to aehieye Substantial Completion of the, entire Work (as defined in Article XII of the 4-2 General Conditions), but in no event to exceed 45 consecutive calendar days after the date of issuance of said Notice to Proceed ("Scheduled Completion Date"). Section 3.3 Extension of Scheduled Completion Date. In the event that Contractor is actually delayed on the performance of the Work by any Excusable Delay and other than for financial reasons, and as set forth in Article XVII of the General Conditions, then the Scheduled Completion Date shall be extended for a period equal to the length of such Excusable Delay. Such extension of time on account of an Excusable Delay shall not be allowed unless applied for in writing by the Contractor within ten (10) calendar days of the commencement of any such delay and the written approval of such extension of time is obtained from the Engineer and/or Consultant or other duly authorized agent of the Town. A waiver of any requirement in this Section 3.3 herein contained, including but not limited to time within which application for extension of time may be made, or requirement for written application and written approval thereof in connection with any or all past delays, shall not constitute a waiver by the Town of any of such requirements in connection with any present or future delays. No verbal approval, either express or implied, or any grant of time extension by the Town or its agents shall be binding upon the Town unless and until such approval is expressly ratified in writing. In the event the Contractor is delayed in the Work by any Excusable Delay and other than for financial reasons, the Contractor's remedy, if at all, shall be limited solely to an extension of time. In no event shall it be entitled to a monetary payment over and beyond that which is specified in the Contract Documents and the duly executed change orders thereto for any damages of any kind whatsoever arising by reason of such Excusable Delay, including but not limited to money actually expended on the job by reason of such delay for salaries, equipment and materials, loss of anticipated profits, and overhead or indirect costs. In the event of delay in the Work which is not due to an Excusable Delay, the Town may direct that the Work be accelerated by means of overtime, additional crews or additional shifts or resequencing of the Work. All such acceleration shall be at no cost to. In the event of Excusable Delay, the Town may similarly direct acceleration and Contractor agrees to perform same on the basis of reimbursement of Direct Cost plus a fee of five percent (5%) of such cost but expressly waives any other compensation therefor. In the event of any acceleration requested pursuant to this paragraph, Contractor shall provide promptly a plan including recommendations for, in Contractor's opinion, the most effective and economical acceleration. Section 3.4 Time: Liquidated Damages. For each calendar day's delay beyond either the Scheduled Completion D to or the Interim Completion Date, (which delays are not excused pursuant to Section 3.3 of t ' e ent), Contractor shall forfeit an pay to the Town the sum of Two Hundred Doll as li dated damages. TOWN CONTRACT R 4-3 ARTICLE IV PREVAILING WAGES The general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in this locality for each craft, classification, or type of worker needed to execute this Agreement is that ascertained by the Director of the Department of Industrial Relations of the State of California, copies of which ("Prevailing Rate Schedules") are on file in the Town's office. The Prevailing Rate Schedules shall be made available to any interested party on request. The holidays upon which such rates shall be paid shall be all holidays recognized in the collective bargaining agreement applicable to the particular craft, classification or type of worker employed on the Project. Contractor shall post the Prevailing Rate Schedule at the Site. Contractor shall forfeit, as a penalty as set forth in California Labor Code § 1775, fifty dollars ($50.00) for each calendar day or portion thereof, for each worker pa;d less than the prevailing rates set forth in the Prevailing Rates Schedules for any work done under the Contract Documents or any work done by any subcontractor under Contractor. Contractor shall comply with the payroll records requirements, provisions regarding apprentices and other provisions of Article XVI of the General Conditions and shall be responsible for causing all of Contractor's subcontractors to comply with these requirements and provisions. ARTICLE V NON-DISCRIMINATION The Contractor hereby agrees to comply with all applicable provisions of State and Federal law regarding non-discrimination, equal employment opportunity and affirmative action. ARTICLE VI WORKER'S COMPENSATION INSURANCE By my signature hereunder, as Contractor, I certify that I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the Work of this Agreement. ARTICLE VII CONFLICT In the event of conflict between the terms of this Agreement and the bid or proposal of said Contractor, then, this Agreement shall control and nothing herein shall be considered as an acceptance of the terms of the proposal conflicting herewith. 4-4 ARTICLE VIII EXHIBITS This Agreement includes the following Exhibits, which are attached hereto and incorporated herein by reference: Exhibit A The Site Exhibit B Contract Documents Exhibit C Contract Sum IN WITNESS WHEREOF, the parties to these presents have hereunto set their hands the day and year first hereinabove written. APPROVED AS TO FORM: B y i< Town Attey ANN R. DANFORTH TOWN OF URON 4 Mayo MOGENS ACH MAGGIORA & GHU=I (Contractor) By r Its Contractor's License No. 7>- Expiration Date ~f 4-5 v a LL N tp CO SECTION 3 BID PROPOSAL (LUMP SUM CONTRACT) PROPOSAL TO THE TOWN COUNCIL OF THE TOWN OF TIBURON, STATE OF CALIFORNIA, FOR PROJECT KNOWN AS: ELEPHANT ROCK FISHING PIER REHABILITATION PROJECT MAQQIOM & GNILOM, iN Name of Bidder: ~ 18 8T. Address of Bidder: AEL, CA, GMI Date of Bid: Z 9 Section 1- In compliance with the Contract Documents for the ELEPHANT ROCK FISHING PIER REHABILITATION PROJECT, the undersigned, having become thoroughly familiar with the terms and conditions of the Contract Documents and with local codes and conditions affecting performance and costs of the work at the place where the work is to be performed, and having fully inspected the Site in all particulars, hereby proposes and agrees to fully perform the work within the time set forth in the Contract Documents and in strict accordance with the Contract Documents, including furnishing any and all labor and materials, and to do all work required to construct and complete the work in accordance with the Contract Documents. Section 2- The total lump sub bid,,b psed & attached schedule of bid prices, is: LLARS cs/4s" 3/ Section 3- BAD ALTERNATES The following per' hall determine the cost or credit resulting from inclusion in the Work and shall include all labor, rials, services, equipment, fringe benefits, taxes, insurance, permit costs, overhead, profit an costs or expenses necessary to perform the required work. The Town reserves the right to e'ect any or all alternates which it determines are in the best interest of the Project. mates are listed in Specification Section, and described in the sections referenced therein an the Drawings. 3-1 ' I Alternate No. 1: ( _ S r 1 DOLLARS Section 4- The quantity of each item of Work to be performed or material to be furnished as stated in the hed schedule of bid price is estimated` a"nd"": pproximate and will be used as a basis for comp bids only, and that the final cerhfcaton of said quantities' will be'niade on the basis of the actu ` antities of work performed or materials furnished, unless measurement and payment of said qu ties are otherwise stated in the Specific Conditions of this contract. All addenda,boun the Specifications or issued during time of bidding are included in this proposal. Receipt o e following addenda and date thereof is acknowledged Addendum No. ; Da Addendum No. k Date Addendum No. Date Section 5- TIME OF COMPLETION A. 1. The undersigned agrees to commence work under the Contract within 5 working days from when 'a written notice from the Town to Contractor to proceed ("Notice to Proceed") ill4 to substantially complete the work (as defined in Article X11 of the General'Co a ditions) within' a period not to exceed`25 consecutive caldfidar days front-the date specified in the Notice to Proceed ("Scheduled Completion Dat B. 1. The undersigned agrees that the Contractor shall begwW oik in accordance with the Notice to Proceed, and shall dilgentlyprosecute-the :Contract to completion within time limits specified. 2 The nndei`signed agrees than should ~;otitractor begin work in advance of _A o` Y _ey ti~Ce r~vlin' o tha~'l✓;' ntract has been dopr©~%ed,b ~.e any -Work performed by Contractor in advance of?d4ie ©f.approval shall be considered as having been done by Contractor at =Contr'actor's .off nski Section 6 The undersigned has carefully checked all bid figures and agrees that the Town shall not be responsible or chargeable for any errors or othissions on the park of he uude s fined in making up this bide yr Section 7- This bid °7ay not be withdrawn-for a period of thirty (30) days'from opening #,of. Section 8- In Compliance' With, S- c bAS 4100, et seq. `of the Gbvernment'Code of tho =S'tate of Califorh a, there is iit fo ~t`h ui'tlie attached list of snbcontract~rs `tlit name and location of the m shop or off ce of each subcontractor who wi `perform` work, labor or render service 3-2 to the undersigned in or about the construction of the Work or improvement contemplated by the bid and the portion of the Work to be done by said subcontractor. Section 9- Section 10- The bidder is licensed by the State of California under: Contractor's License No. Z2 ( 7 67 Class A~ G g C-/ Z- C-7-1 C ~Z Name of Bidder: YA401ORA Signature of person(s) persons GHILOrri, INC for Bidder and title(s) of such Address of Bidder: 5 AN L-- If bidder is a corporation, state legal name of corporation, state of incorporation, and name of president and secretary; if a partnership, state full name of all general partners and name under which business is conducted. Name of Corporation: GWORA AID GHILOm• INC Name of President: A~.y ~r~lco7rl Name of Secretary: C-LMo MrLo~a State of Incorporation: C-A[.-I FU-N )A, Name of Partnership: Names of General Partners: Section 11- SUPPLEMENTS TO PROPOSAL FORM In addition to all information required in the Instructions to Bidders, accompanying this Proposal Form are the following documents completely filled in by the bidder and hereby made a part hereof: A. Bidder's Bond or other Bid security B. Statement of Qualifications and Experience of Bidder C. List of Subcontractors D. Affidavit of Noncollusion E. Contractor's Performance Bond F. Labor and Material Payment Bond 3-3 UAMORA AND GmiLo M TOWN OF TIBURON ELEPHANT ROCK FISHING PIER REHABILITATION ENGINEER'S ESTIMATE AND SCHEDULE OF BID PRICES ITEM ESTIMATED UNIT TOTAL NO. DESCRIPTION QUANTITY PRICE AMOUNT 1. Signs and Traffic Control 1 LS 59,30 5-93o " 2. Mobilization & Demobilization 1 LS 9552 : 9537, 3. Demolish Existing Pier Walkway 1 LS ZZO-° Z-6* 1 4. Excavation 110 Cy Z S 5. Structural Concrete 50 °b Cy ~38 900=- 26 6. Minor Concrete - Minor Structures * 5 CY coo 7. Pervious Backfill (Pea Gravel) 10 MID Ton Roo.- 8. Purchase & Install Timber & Steel Walkway 1 _ LS 43 GS"a% g8 65-0.- 9. Purchase and Install Fiberglass Decking 700 00 SF 7,0 Sop= 10. Rock Slope Protection 10 Ton /2S6° /Z Sro = 11. Purchase and Install Metal Railing 125.5 LF Z~ Total Base Bid (Lump Sum) 3/6 00 * Indicates Final Pay Quantity Legend LS = Lump Sum CY =Cubic Yard Ton =Ton SF =Square Foot LF =Linear Foot 3-3A EXHIBIT A BIDDER'S BOND KNOW ALL MEN BY THESE PRESENTS: Thntwe, MAGGIORA AND GHILOTTI, INC. as PRINCIPAL, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA a corporation duly organized under the laws of the State of CONNECTICUT and duly licensed to become sole surety on bonds required or authorized by the State of California, as SURETY, are held and fuxnly bound unto the Town of Tiburon, a municipal corporation (hereinafter called the 'Town'), in the penal sum of TEN PERCENT (10%) OF THE TOTAL AMOUNT OF THE BID of the Principal above named, submitted by said Principal to the Agency, for the work desc nibed below; for the payment of which sum in lawful money of the United States, well and U* to be made, we bind ourselves, our heirs, executors, adm,inistratoca and successors, jointly and severally, firmly by these presents. In no case shall the liability of the Surety hereunder exceed the sure of TEN PERCENT (10'1) OF THE AMOUNT BID------- Dollars THE CONDITION OF THIS OBLIGATION IS SUCH1 That whereas the Principal has submitted the above mentioned bid to the Town for. ELEPHANT ROCK FISHING PIER REHABILITATION PR03ZCT NOW, THEREFORE, if the aforesaid Principal is awarded the contract and, within the time and manner required under the specifications, after the prescribed forms are presented to him for signature, enters into a written contract, in the prescribed forms, in accordance with the bid, and files a performance bond and a contractor's payment bond, and files the required insurance policies with the Town, all as required by the specifications and the contract or by law, then the obligation shall be null and void; otherwise it shall be and remain in full force and effect. The Surety, for value received, hereby stipulates and arcs that the obligation of said Surety and its bond shall be in no way unpaired or affected by arty extension of the time within which the Town may accept such Bid; and said surety does hereby waive notice of any such extension In the event suit is brought upon this bond by the Town and judgment is recovered., the Surety shall pay all costs incurred by the Town in such suit, including reasonable attorney's fees to be fixed by the court. IN WITNESS WHEREOF, we have hereunto set our hands and scats on this 23rd day of OCTOBER , 1998 . 3-4 (Type Company Name) (Typo Company N=c) MAGGIORA A D EILOTTI I C. TRAVELERS CASUA TY AND SURETY COMPANY OF AMERICA`, By By i~dL " - - - KELLY 44OLTEMANN P.esATTORNEY-IN-FACT Title Title By N/A Title Tide PRINCIPAL SURETY By. N/A (AMch aclmowledgments of both Principal and Surety signatures) 3-5 CALUORIVIA ALL-PURPOSE ACKNO WL DGE EjVT State of CALIFORNIA County of SONOMA On 10-23-98 before me, BONNIE K. FRYMIRE NOTARY PUBLIC DATE NAaAE. TITLE OF OFFICER - E.G.. JANE DOE. NOTARY PUBUC personally appeared KELLY HOLTEMANN NU CS) OF SIGNER(S) ® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person whose name(W is/mm subscribed to the within M ~ o~ ,-,c, , - ~a,s instrument and r~ ~4 BOWI acknowledged to me that Wsheftg~K NOTARY. t r . executed the same in hda(her/Ahs!br authorized capacit(ly, and that by Aois/her/thehK signature( on the instrument the person*) or the entity upon behalf of which the person" acted, executed the instrument. OPT Though the data below is not required by law, it may prove valuable to persons relying on the document and prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NME OF PERSON(S) OR ENTYMES)Y TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA DESCRIPTION OF ATTACHED DOCUMENT BIDDER'S BOND TITLE OR TYPE OF DOCUMENT TWO NUMBER OF PAGES OCTOBER 23rd, 1998 DATE OF DOCUMENT N/S SIGNER(S) OTHER THAN NAMED ABOVE WITNESS my hand and official seal. IN WITNESS WHEREOF, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA has caused this instrument to be signed by its Vice President, and its corporate seal to be hereto affixed this 1st day of July, 1997. STATE OF CONNECTICUT X00 SUAE~y )SS. Hartford . WTFOM COUNTY OF HARTFORD I corms, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA By George W. Thompson Vice President On this 1st day'of July, 1997, before me personally came GEORGE W. THOMPSON to me known, who, being by me duly sworn, did depose and say: that he/she is Vice President of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, the corporation described in and which executed the above instrument; that he/she knows the seal of said corporation; that the seal affixed to the said instrument Is such corporate seal; and that he/she executed the said Instrument on behalf of the corporation by authority of his/her office under the Standing Resolutions thereof. CERTIFICATE Ivry commission expires June 30, 2001 Notary Public Marie C. Tetreault I, the undersigned, Assistant Secretary of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a stock corporation of the State of Connecticut, DO HEREBY CERTIFY that the foregoing and attached Power of Attorney and Certificate of Authority remains in full force and has not been revoked; and furthermore, Board of Directors, as set forth in the Certificate of Authority, are now in force. that the Standing Resolutions of the Signed and Sealed at the Home Office of the Company, in the City of Hartford, State of Connecticut. Dated this 23rd day of OCTOBER . 19 98 . eBy: , CONK X 1. Rose Gonsoulin Assistant Secretary S-2435 (7-95) TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Hartford, Connecticut 06183-9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT KNOW ALL MEN BY tHESE PRESENTS, THAT TRAVELERS CASUALTY AND SURE corporation duly organized under the laws of the State of Connecticut, and having its principal office In OF AMERICA, a County of Hartford, State of Connecticut, hath' made, constituted and appointed and does by these the City n Hartford, constitute and appoint Lawrence J. Coyne, Goran G. E. Ryn, Kelly Holtemann, Bonnie K. Frymire or Thomas resents make, Hughes of, Petaluma, CA,its true and lawful Attomey(s)-in-Fact, with full power and authority hereby conferred to sign, acknowledge, at any place within the United States, or, If the following line be filled In, within the area there deny execute and , the following instrument(s): signated by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity, and other writin s the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto g obligatory in and to bind TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, thereby as full and to the extent as if the same were signed by the duly authorized officers of TRAVELERS CASUALTY AND same COMPANY OF AMERICA, and all the- acts of said Attorne s 4n-Fact SURETY hereby ratified and confirmed. y() pursuant to the authority herein given, are This appointment is made under and by authority of the following Standing Resolutions of said Com an wh are now in full force and effect: P Y. ich Resolutions VOTED: That each of the following officers: Chairman, Vice Chairman, President, Any Group Executive, Any Senior Vice President, Any Vice President, Any Assistant Vice Executive me Any S resident, Any Assistant Secretary, may from time to time appoint Resident Vice Presidents, Resident Assistant Secretaries ecretary, Any Atto meys-in- Fact, and Agents to act for and on behalf of the Company and may give any such appointee such authority as his ni certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds eco contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, an , any of said officers or the Board of Directors may at any time remove any such appointee and revoke the and authority given him or her. power and VOTED: That any bond, recognizance, contract of Indemnity, or writing obligatory in the nature of a bond re conditional undertaking shall be valid and binding upon the Company when (a) signed by the Chairman, the Vice Chair e, or Chairman, the President, an Executive Vice President, a Group Executive, a Senior Vice President, a Vice President, an Assista President or by a Resident Vice President, pursuant to the power prescribed in the certificate of authority of such R nt Vice Vice President, and duly attested and sealed with the Company's seal by a Secretary or Assistant Secreta or by Resident Assistant Secrets ry a Resident ry, pursuant to the power prescribed in the certificate of authority of such Resident Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys-In-Fact pursuant to the power rescribe certificate or certificates of authority. P din his or their This Power of Attomey and Certificate of Authority is signed and sealed by facsimile under and b following Standing Resolution voted by the Board of -Directors of TRAVELERS CASUALTY A horny of the COMPANY OF AMERICA, which Resolution is now in full force and effect: AND SURETY VOTED: That the signature of each of the following officers; Chairman, Vice Chairman President, Any Group Executive, Any Senior Vice President, Any Vice President, Any President, Any Executive Vice Secretary, Any Assistant Secretary, and the seal of the Company may be affixed by facsimile to iany power of attorney wer of attorney Any any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attomeys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and an 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 a binding upon the Company in the future with respect to any bond or undertaking to which it is attached. rid (over) EXHIBIT B STATEMENT OF QUALIFICATIONS AND EXPERIENCE OF BIDDER The bidder is required to state below what work of similar magnitude or character he has done, and to give reference that will enable the Town to judge his qualifications, experience, skill and business standing and of his ability to conduct the work as completely and as rapidly as required under the terms of the contract. 3-6 (Type Company Name) By Title Title By Title Title PRINCIPAL (Type Company Name) By By SURETY (Attach acknowledgments of both Principal and Surety signatures) 3-5 A ~r 555 DUBOIS STREET SAN RAFAEL, CA 94901 VV H ENGINEERING CONTRACTORS nip i it ';:Y,161 MAGGIORA & GHILOTTI, INC. CONTRACTOR'S STATEMENT OF EXPERIENCE 1997 PHONE (415) 459-8640 FAX (415) 459-2065 TYPE OF WORK VALUE OF WORK LOCATION FOR WHOM PERFORMEC Paving $ 97,558.16 Various Cal Trans Storm brain $ 168,674.13 San Rafael San Rafael Redevelopment Pipeline $ 444,123.21 San Rafael Morin Municipal Water Dist. Bridge Replacement $ 206,949.00 Vacaville Solano County Trans. Dept. Street Rehablilitation $ 1,010,779.59 Sonoma County of Sonoma Bridge Replacement $ 378,216.64 Fairfield Solano County Trans. Dept. Classroom Sitework $ 173,964.08 Mill Valley Mill Valley School District Wetlands Mitigation $ 157,562.36 Santa Rosa Santa Rosa School District Restore Creek $ 277,435.39 Hayward County of Alameda Pipeline $ 372,829.69 Larkspur Morin Municipal Water Dist. Paving $ 119,909.24 San Rafael Morin Sanitary Service Creek Channel Restoration $ 186,723.08 Petaluma City of Petaluma Sitework $ 278,871.61 Novato Camco Pacific Contruction Classroom Sitework $ 216,355.61 San Rafael Dixie School District Street Rehabilitation $ 975,491.59 Mill Valley City of Mill Valley Pipeline $ 229,172.12 Sausalito Morin Municipal Water Dist. Levee Repairs $ 2,898,556.54 Sacramento Cnty AFA Construction Slide Repair $ 1,451,007.59 Cloverdale Cal Trans Various $ 814,632.14 Various Various TOTAL: $ 10,458,811.77 EXHIBIT C LIST OF SUBCONTRACTORS As required by Section 4104 et seq. of the California Public Contract Code, the name and location of business of each subcontractor who will perform work or labor, or render service to the Contractor, in or about the construction of the Work, and the portion of the Work which will be done by each subcontractor, are listed below. Any item of work in excess of one-half of one percent of the total bid for which there is not a designated subcontractor will be performed by the forces of the prime contractor. Name and Address Type of Work Amount of Subcontract ZAPP Nt L~ j kJ„ L1AIG, SaAj ~z 3-8 LIST OF MACHINERY, PLANT AND OTHER EQUIPMENT AVAILABLE FOR PROPOSED WORK: STATEMENT OF FINANCIAL RESOURCES: (State if Attached) MAGGIORA AND GHILOT n, INC GENERAL CONTRACTOR 3-7 EXHIBIT D ELEPHANT ROCK FISHING PIER REHABILITATION PROJECT State of California County of Marin Z-~44v- NONCOLLUSION AFFIDAVIT TO BE EXECUTED BY BIDDER AND SUBMITTED WITH PROPOSAL ss. being first duly sworn, deposes and says tha e r she A t' a of give- the party making the foregoing id that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization. or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or in directly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member agent thereof to effectuate a collusive or sham bid. Executed by bidder this Z 3 day of 1561'-D e6X , 19 99 . Iz,a % i Bidder 1 By Its oe-c"s'lD'0V Subscribed and this sworn to before me oel/ , aJ 'p. If 4 g c Nota Public day of 0C 7'0 ff CiZ ry 199 i~. ISAAC f tsu5ull c M AUFWAA r JKM WITNESS my hand and official seal. CSIGNATURE OF NOTARY 3-9 EXHIBIT E CONTRACTOR'S PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: That as Principal, and incorporated under the laws of the State of and authorized to execute bonds and undertakings as sole Surety, are held and firmly bound unto the Town of Tiburon, a municipal corporation ("Town in the sum of (DOLLARS) for the payment thereof, well and truly to be made, said Principal and Surety bind themselves, their administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of the foregoing obligation is such that: WHEREAS, the above bounden Principal is about to enter into a certain contract with the Town : ELEPHANT ROCK FISHING PIER REHABILITATION PROJECT the award of which said contract was made to said contractor by the Town Council of the Town of Tiburon on , as will more fully appear by reference to the minutes of said Council of the Town of said date. NOW, THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and agreements of said contract during the original term thereof, and any extensions thereof which may be granted by the Town, with or without notice to the Surety, and if he shall satisfy all claims and demands incurred under such contract, and shall fully indemnify and save harmless the Town from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the Town all outlay and expense which the Town may incur in making good any default, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, forbearance or waiver, prepayment or delay in payment, alteration or addition to the terms of the contract or to the work to be performed thereunder or the specifications accompanying the same shall in no wise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, forbearance or waiver, prepayment or delay in payment, alteration or addition to the terms of the contract or to the work or to the specifications. Said Surety hereby expressly ackn iswakn1d's'fi ed ed a ees to be bound by the terms and -gr conditions contained in the contract documents and any amendm id contract documents, and modifications are hereby incorporated irhis per' as "set forth herein. f ~ 3-10 BONN NO: 005SBI0310977OBCM PREMIUM: $654.00 EXHIBIT E C,QN'T'RACTOR'S PF R'F'.QRMANCE BOND KNOW ALL MEN BY THESE PRESENTS: ,Mlt MAGGIGRA AND GHILOTTI INC. as Principal, and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA incorporated under the laves of the State of CONNECTICUT and authorized to execute bonds and undertakings as sole Surety, arc held and firmly bound unto the To%m of Tiburon, 4 municipal corporn6on ("Town in the sum of ONE HUNDRED FORTY F THOUSAND THREE HUNDRED SIXTEEN & 00/100 (DOLLARS) (S14 5 316.0 ; for the payment tboreof, well wid truly to be inade, said Principal acid Surety bind themselves, their administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of die foregoing obligation is such that: WHEREAS, the above bounden Principal is about to enter into a curtain contract with the Town : ELEPHANT ROCK FISHING PIER REFIABILI TATION PROJECT tlae award of Which said contract was niado to said contractor by the Town Council of die Town of Tiburon on NOVEMBER 16, 1998 , as will more fully appear by reference to die minutes of said Council of Ohc Town of said d4ate. NOW, THEREFORE, if Lhe Principal shall well, truly and faithrully perform its duties, all the undertakings, covenants, terms, conditions, and ag3rcements of said contract during the original tarn thereof, acid any oxionsions thcrcof which may be granted by the Town, with or without notice to the Surety, and if he shall satisfy all claims and dcmands incurred under such contract, and shalt fully indemnify and save hannless the Town from all co5rts and damages which it may suffer by reason of failure to do so, and shall reimburse aid repay the To,vNm all outlay and expense which the Town may incur in making good any default, then this ob4ation shall become null and void; oiheMsc it shall be and remain in full force and effect. PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and agrees Ulat no change, extension of time, forbearance or waiver, prepaynicut or delay in payment, alteration or addition to the tcrins of the contract or to die work to be performed thercundcr or the specifications accompanying the same shall in no wise afi'cct its obligation. on this bond, and it does hcrcby waive notice of any such change, extension of tinie, forbearancc or waiver, prcpaywent or dclay in payment, alteration or addition to the terms of the contract or to the work or to llic specificatimis. Said Surety hereby expressly acknowledges and agrees to be bound by the tenns and conditions contained in the contract documents and any amendments and/or modifications thereto, and said contact documents, and modifications are hereby incorporated in this performance bond as though fully set forth heroin. 3-10 IN WITNESS WHEREOF, this instrument is cxccutcd this 1ST day of DECEMBER 19 98 PRINCIPAL (Type Company Name) MAGGIORA LGHIL C 13 Y: Title SURETY (Type Company Name) TRAVELERS CASUALTY AND SURETY ~MPANY ~IIERzICA By. LAWRENCE J. CO ATTORNEY'-IN-FACT Title By: Titla By; n/a Talc Address. 201 N. CIVIC DR . , STE 113 WALNUT CREEK, CA 94596 (Afrix Corporate Scats) (Attach Acknowledgments of both: Principal and Surety sigmaures.) Approved by the Town Attormy of the Torn of Tiburon on -(o day of 16~~Clt 0000, .L- 07 3-11 CALIFORNIA ALL-PURPOSE ACMV0'9=G State of CALIFORNIA County of SONOrIA On 12/1/98 before me, KELLY HERMAN DATE NAME, TITLE OF OFFICER - E.G., JANE DOE, NOTARY PUBLIC personally appeared LAWRENCE J. COYNE NAME(S) OF SIGNER(S) ® personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(x& whose name ism subscribed to the within instrument and acknowledged to me that he/-- executed the same in hisli=x&ki~ir authorized capacit(w&y, and that by his/r signature() on the instrument the person(M or the entity upon behalf of which the person(a) acted, executed the instrument. 1154914 r LE4MA"J z WITNESS my hand and official seat fj e ;.1r.'7, AP1Y r (J 5L.IC -CALIF. 0 Sta?it. e 2401 SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and prevent fraudulent reattachment of this fOnTL CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE PERFORMANCE BOND TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL TWO ® ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: 12/1/98 DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENnT(IES Y TRAVELERS CASUALTY AD STJRETY COMPANY OF AMERICA n /a SIGNER(S) OTHER THAN NAMED ABOVE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of County of CHL /F o.PNiA /'~fI ~Pi N r N On rOech:~l e E/~ / Y before me, vl f- Zfgc No7'AC 444ec , DATE NAME, TITLE OF OFFICER - E.G., "JANE D09, NOTARY PUBLIC" personally appeared CJ-44ey 6f1111- o 7 T/ NAME(S) OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), 1 or the entity upon behalf of which the person(s) acted executed the instrument. WITNESS my hand and official seal. 4_~l UP_ SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL CORPORATE OFFICER oe-V ~112W6J'/J~ EN ~ TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: E je0 /V o TITLE OR TYPE OF DOCUMENT /w d NUMBER OF PAGES /at-/-?f DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) N e o T T/ ~iVC SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 BOND No: 005SBI0310977OBCM PREMIUM: INCLUDED KXHI 3IT F 1; 6-BOR AND MATERIAL PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS, THE TOWN OF TMURON, a municipal corporation, is about to enter into a certain contract with MAGGIORA AND GHILOTTI, INC. (hercinanor desipated as the "Principal"), namely, for the work hereinafter briefly described as follows; ELEP11AN'T ROCK FISHING PIER REHADXLITATION PROJECTand more fully dcscribed in and required by said cootrarx. the award of which said contract was made to said Principal by the Town Council of the Town of Tiburon on NOVEMBER 16, , 19 98, as will more filly appear by reference to the minutes of said Town Council of said date. WIM'REAS, said Principal is rcquircd by Chapter 5 (commencing at Section 3225) and Chapter 7 (commencing at Section 3247), Title 15, Part 4, Division 3 of the California Civil Codo to furnish a bond in connection with said contract. NOW, THEREFORE, we, the Principal and. TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA incorporated wndcr the laws of the State of CONNECTICUT ,and authoriycA to cxecute bonds and undertakings as sole surety, as Surety, are held and fig my bound unto the Town in the penal such of ONE HUNDRED FORTY FIVE THOUSAND THREE HUNDRED SIXTEEN & 00/100 DOLLARS (5145 316. lawful moncy of the United States of America for die payment of which suns well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and sevorally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, its subcontractors, heirs, executors, Administrators, successors, or assigns, shall fail to pay any of the persons named in Section 3181 of dic California Civil Code, or zimounts due under the Unemployment Irnsuralncc Code with respect to any work or labor perforaw-d or matcrials supplied by any such claimant, which said work, labor or materials arc covered by the said contract mid any amendments, changes, change orders, additions, alterations, or modifications thereof, or for any amounts required to be deducted, withheld. and paid over to the Employment Development Department from the wigcs of employees of the contractor and his subcontractors, pursuant to Section 18806 of the Revenue and Taxation Code, with rospcct to such work and labor, the Surety will pay for the same, in an amount not cxcecding tho sum bct61abovc spec,ificxl_ 3-12 This bond shall inure to the benefit of any of the persons named in Section 3181 of the California Civil Code, so as to give a right of action to such persons or their assigns in any suit brought upon this bond. It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from die obligation of this bond by any change, cxtension of time for perfornianoe, addition, alteration or modification in, to, or of any contract, plans, specifications, or agreement pertaining or relating to any scheme or work of improvement hcrcinabove described or pertaining or relating to the furnishing of labor, materials, or equipment thcreforc, nor by any change or modification of any terms of payment or-extension of the time for any payment pertaining or relating to any scbcmo or work of improvenxcnt hcrcinabove described, nor by any rescission or attempted rescission of the contract, agreement or bond, nor by any conditions procedont or subsequent in the bond attempting to limit the right of rccovcry of claimwits otherwise entitled to recover under any such contract or agreenioiu or under the bond, nor by any fraud practiced by any person other than the claimant socking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose beck .fit sucb bond has been given, by reason of any breach of contract between Town and original contractor or on the part of any obligor named in such bond, but the solo conditions of recovery shall be that claimant is a person described in Section 3110 or 3112 of the California Civil Code, and has not been paid the full amount of his claim acid that Surety does hereby waive notice of any such change, extension of time, addition, alteration. modification, rescission or attempted rescission, herein mentioned. It is furtbcr stipulated and agreed that no final scUlcinent between the Town and the Contractor with rafcrcncc to Lho work, shall &bridge the right of any bcncficiary hereunder whose claims may oe unsatisfied. This bond is cxccutcd and delivered to comply with requirements of the Town of Tiburon, and to comply with the provisions of Title 15, Chapters 5 acid 7 of Part 4, Division 3 of the Civil Code of the State of California. SIGNED AND SEALED this 1ST day of DRTM~ , 192L. PRINCIPAL (Type Company Name) 1`AGGIORA AND GHILOTTI, INC. By: Title E SURETY (Type Comppy Namc) TRAVELE CASUAL SURETY COMPANY OF AMERICA By, s WRENCE CO , ATTORNEY-IN-FACT Title By; n/a Title 201 N. CIVIC DR., STE 113 Address WALNUT CREEK, CA 94596 (Affix Corporate Seals) {At(ach Acknowledgments of both Principal and Surety signatures) Approved by the To~Nn Attorney of the Town of Tiburon on die A day of e 19 By: - 3-13 CALIFORNIA ALL-PURPOSE ACKIVO Ti=GE1 ENT State of CALIFORNIA County of SONWA On 12/1/98 before me, DATE personally appeared (E personally known NALAE, TITLE OF OFFICER • E.G., JANE DOE, NOTARY PUBUC LAWRENCE J. COYNE NAME(S) OF SIGNER(S) to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(: whose named ism subscribed to the within instrument and acknowledged to me that he/F executed the same in his/i=xf kair authorized capacit4 y, and that by hiss r si ture(x) on the instrument the person(po or the entity upon behalf of which the r person(a) acted, executed the inst-r=ent. CAL lP C° FAA WITNESS my hand and official seal SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ® ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTIT(IES)Y TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA KELLY HERMAN DESCRIPTION OF ATTACHED DOCUMENT PAYMENT BOND TITLE OR TYPE OF DOCUMENT TWO NUMBER OF PAGES 12/1/98 DATE OF DOCUMENT n/a SIGNER(S) OTHER THAN NAMED ABOVE TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Hartford, Connecticut 06183-9062 POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT KNOW ALL MEN BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, corporation duly organized under the laws of the State of Connecticut, and having its principal office in the City of Hartfo a County of Hartford, State of Connecticut, hath made, constituted and appointed, and does by these artake, constitute and appoint Lawrence J. Coyne, Goran G. E. Ryn, Kelly Holtemann, Bonnie IL F Presents make, rymire or Thomas Hughes * of, Petaluma, CA,its true and lawful Attomey(s)-in-Fact, with full acknowledge, at any place within the United States, or, if the following line be filled In within t e of eaed to sign, execute and , the following instrument(s): there designated by histher sole signature and act, any and all bonds, recognizances, contracts of indemnity, and other writin s ob the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto g Ilgatory in and to bind TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, thereby as fully and to the same extent as if the same were signed by the duly authorized officers of TRAVELERS CASUALTY AND SU COMPANY OF AMERICA, and all the acts of said Attorney(s)-in-Fact RETY hereby ratified and confirmed, pursuant to the authority herein given, are This appointment Is made under and by authority of the following Standing Resolutions of said Company, which Res are now in full force and effect: Resolutions VOTED: That each of the following officers: Chairman, Vice Chairman, President Any Vice Group Executive, Any Senior Vie President, Any Vice President, Any Assistant Vice Peres de to Any Secretar Presidenty,, Any Any Assistant Secretary, may from time to time appoint Resident Vice Presidents, Resident Assistant Secretaries Attomeys -in- Fact, and Agents to act for and on behalf of the Company and may give any such appointee such authority his certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bond, recd ni , contracts of indemnity, and_ other writings obli9ato g zances ry in the nature of a bond, recognizance, or conditional undertaking, and any of said. officers or the Board of Directors may at any time remove any such appointee and revoke the power and authority given him or her. VOTED: That any bond, recognizance, contract of indemnity, orwriting obligatory In the nature of a bond, recognizance, conditional undertaking shall be valid and binding upon the Company when (a) signed by the Chairman, the Vice Chairman, the President, an Executive Vice President, a Group Executive, a Senior Vice President, a Vice President, an Assistant n Vice President or by a Resident Vice President, pursuant to the power prescribed In the certificate of authority of such Resident Vice President, and duly attested and sealed with the Company's seal by a Secretary or Assistant Secrets orby a Resident Assistant Secretary; pursuant to the power prescribed in the certificate of authority of such Resident Assis ant ecretaq; or (b) duly executed (under seal, if required) by one or more Attorneys-in-Fact pursuant to the power prescribed In his or t certificate-or certificates of authority. or their r This Power of Attorney and Certificate of Authority Is signed and sealed by facsimile under and b authority following Standing Resolution voted by the Board of -Directors of TRAVELERS CASUALTY AND SR the COMPANY OF AMERICA, which Resolution is now in full force and effect: RETY VOTED: That the signature of each of the following officers: Chairman, President, Vice. Chairman, President, Any Executive Vice Any Group Executive, Any Senior Vice President, Any Vice President, Any Assistant Vice President, An Secretary, Any Assistant Secretary, and the seal of the Company maybe affixed by facsimile to any power of attome y 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 an 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 upon the Company in the future with respect to any bond or undertaking to which it is attached. (over) IN WITNESS WHEREOF, TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA has caused this instrument to be signed by its Vice President, and its corporate seal to be hereto affixed this 1st day of July, 1997. fi ~yo sua f~ STATE OF CONNECTICUT )SS. Hartford ~ . 3 HARiFOM g COUNTY OF HARTFORD CONN. ~f • TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA By. George W. Thompson Vice President On this 1st day of July, 1997, before me personally came GEORGE W. THOMPSON to me known, who, being by me duly swom, did depose and say: that he/she is Vice President of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, the corporation described in and which executed the above instrument; that he/she knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; and that he/she executed the said instrument on behalf of the corporation by authority of his/her office under the Standing Resolutions thereof. _ ~p.TET~ Ufl CERTIFICATE mwl-0 .c. Q. ~My commission expires June 30, 2001 Notary Public Marie C. Tetreault I, the undersigned, Assistant Secretary.-of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a stocl corporation of the State of. Connecticut, DO HEREBY CERTIFY that the foregoing and attached Power of Attorney anc Certificate of Authority remains In full force and has not been revoked; and furthermore, that the Standing Resolutions of the Board of Directors, as set forth in the Certificate of Authority, are now in force. Signed and Sealed at the Home Office of the Company, in the City of Hartford, State of Connecticut. Dated this 1ST - day of DECEMBER , 19 98. ►o SU HARTFORD, < By. to CONK Rose Gonsoulin ` • Assistant Secretary S-2435 (7-95) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 State of /"r- a,e V//~ County of Mv9_X11V r T On 4e'--c Ei7i,&W before me, J Iy/o Zr WC, /yo 79ay ~c~-~~, c DATE NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" personally appeared 6`~ 6- le 6 7 T/ NAME(S) OF SIGNER(S) personally known to me - OR - ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their ~g signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. UP WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ DIVIDUAL CORPOR TE OFFICER ~EMT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: ~ c ,c^ 6 erg l /cr DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENT ES)) /Y w/D 'Pe'J V O' f1IL D 7' 71, 11-e C . SIGNER(S) OTHER THAN NAMED ABOVE fi.49 ~h,cN7- o /V TITLE OR TYPE OF DOCUMENT w~ NUMBER OF PAGES 01993 NATIONAL NOTARY ASSOCIATION - 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 AIiURDCER / IFICA'r 1 OF LIABILITY INSUr'#N CELSR SD DATE (MM/DD/YY) GGI-1 11/30/98 PRODUCE. THIS CERTIFICATE IS _ JED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Don Ramatici Insurance, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 551 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Petaluma CA 94953 COMPANIES AFFORDING COVERAGE Paul Ramatlcl COMPANY Phone No. 707-782-9200 Fax No.707-782-9300 A Travelers/Aetna Insurance INSURED COMPANY B Fireman's Fund Insurance Co. Maggiora & Ghilotti, Inc. COMPANY Attn: Gary Ghilotti C Travelers/Aetna Insurance 555 Dubois Street San Rafael CA 94901 COMPANY D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDE D BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS , EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. [CoTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE (MM/DDIYY) DATE (MM/DDNY) GE NERAL LIABILITY GENERAL AGGREGATE $ 2 000 000 A X COMMERCIAL GENERAL LIABILITY DTC04SOX3036 09/01/98 09/01/99 PRODUCTS - COMP/OPAGG , , $ 2 000 000 CLAIMS MADE OC , , CUR PERSONAL & ADV INJURY $ 1 000 000 , , OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ 1,000,000 X XCU Included FIRE DAMAGE (Any one fire) $ 100 000 X $500. GL Ded MED EXP (Any one person) , $ 5 , 0 0 0 AUT OMOBILE LIABILITY B X ANY AUTO MXX80711923 09/01/98 09/01/99 COMBINED SINGLE LIMIT $ 1,000,000 I ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ X HIRED AUTOS I BODILY INJURY $ X NON-OWNED AUTOS (Per accident) I PROPERTY DAMAGE $ GAR AGE LIABILITY AUTO ONLY - EA ACCIDENT $ M ANY AUTO OTHER THAN AUTO ONLY: EACH ACCIDENT $ . - AGGREGATE $ EXCESS LIABILITY F EACH OCCURRENCE $ 9,000,000 C X UMBRELLA FORM DTCUP331K8475 09/01/98 09/01/99 AGGREGATE $ 9,000,000 OTHER THAN UMBRELLA FORM Retention $ 10 , 000 WORKERS COMPENSATION AND WC STATU- OTH- EMPLOYERS' LIABILITY TORY LIMITS ER THE PROP EL EACH ACCIDENT $ RIETOR/ n INCL PARTNERS/EXECUTIVE EL DISEASE - POLICY LIMIT $ OFFICERS ARE: EXCL EL DISEASE - EA EMPLOYEE $ OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS RE: Operations of the Named Insured for the Certificate Holder . Elephant Rock Fishing Pier Rehabilitation Project * Ten Ten day ntoice would be sent on non payment 30*CNC026 CERTIFICATE HOLDER CANCELLATION TOWNTIB SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL .30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Town of Tiburon BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 1505 Tiburon Blvd OF ANY KIND UPON THE COMP ITS AGENTS OR REPRESENTATIVES. Tiburon CA 94920 AU ORIZED R RESE TIVE ACORD 25-S (1/95) <c AGG CL]RPARATIinIU T9ASt'' CONTRACTORS LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED (Section II) is amended to include any person or organization you are required by written contract to include as an insured, but only with respect to liability arising out of "your work." This coverage does not include liability arising out of independent acts or omissions of such person or organization. The written contract must be executed prior to the occurrence of any loss. 4. This insurance with respect to any engineers, architects, or surveyors does not apply to "bodily injury," "property damage," "personal injury" or "advertising injury" arising out of the rendering of or the failure to render any professional services, including: a) The preparing, approving or failing to prepare or approve maps, drawings, opinions, reports, surveys, change orders, designs or specification; and 2. Where required by written contract, this insurance is primary and noncontributing as respects the person or organization included as an insured under this endorsement and any other insurance available to any such person or organization shall be in excess and noncontributing with this insurance. 3. a. Subpart (1) (a) of exclusion e. does not apply to you or any such person or organization insured under Paragraph 1. of this endorsement if the "bodily injury" or "property damage" arises out of "your work" performed on premises which are owned or rented by such person or organization at the time "your work" is performed. b. Subpart (1) (d) (i) of exclusion e. does not apply to any such person or organization insured under Paragraph 1. of this endorsement if the "bodily injury" or "property damage" arises out of "your work" performed on premises which are owned or rented by such person or organization at the time "your work" is performed. b) Supervisory, inspection or engineering services. This insurance does not apply to "bodily injury" or "property damage" arising out of "your work" included in the "products- completed operations hazard" unless you are required to provide such coverage by written contract and then only for the period of time required by the contract, but in no event beyond the expiration date of the policy. GN CO 26 01 95 Copyright. The Travelers Indemnity Company 6TC OF ACORD CERTIFIC SR SD DATE (MM/DD/YY) LIABILITY INSUr AAC1; TM , j GGI-1 11/30/98 PRODUCEN THIS CERTIFICATE IS a. JED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Don Ramatici Insurance, Inc. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 551 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Petaluma CA 94953 COMPANIES AFFORDING COVERAGE Paul Ramatici COMPANY Phone No. 707-782-9200 Fax No. 707-782-9300 A State Compensation Ins. Fund INSURED COMPANY B Maggiora & Ghilottl, Inc. COMPANY Attn: Gary Ghilotti C 555 Dubois Street San Rafael CA 94901 COMPANY D COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE (MM/DDIYY) DATE (MM/DD/YY) GE NERAL LIABILITY GENERAL AGGREGATE $ COMMERCIAL GENERAL LIABILITY PRODUCTS - COMP/OP AGG $ CLAIMS MADE ❑ OCCUR PERSONAL & ADV INJURY $ OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ FIRE DAMAGE (Any one fire) $ MED EXP (Any one person) $ AUT OMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT $ ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ GAR AGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO I OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXC ESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND ' WC STATU- OTH- X TORY LIMITS ER EMPLOYERS LIABILITY EL EACH ACCIDENT $1,000,000 A THE PROPRIETOR/ F7 PARTNERS/EXECUTIVE INCL 4307398 10/01/98 10/01/99 EL DISEASE - POLICY LIMIT $ 1 000 , 000 OFFICERS ARE: 17 EXCL EL DISEASE - EA EMPLOYEE $ 1,000,000 OTHER , DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS RE: erations of the Named Insured fo r the Certificate Holder. Job: Elephant Rock Fishing Pier Rehabil itation Project. *Ten day notice would be sent on non payment. 30* CERTIFICATE HOLDER' CANCELLATION TOWNTIB SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, Town of Tiburon BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 1505 Tiburon Blvd OF ANY KIND UPON THE COMP ITS AGENTS OR REPRESENTATIVES. Tiburon CA 94920 AU ORIZED R RESE TIVE R ACORD 25-S (1/95) AM c ACO CORPORATION 1988 SECTION 5 GENERAL CONDITIONS TABLE OF CONTENTS ARTICLEI ................................................................1 DEFINITIONS .......................................................1 ARTICLE II ...............................................................2 EXECUTION, CORRELATION AND INTENT OF DOCUMENTS 2 ARTICLE III ..............................................................3 ADMINISTRATION OF THE CONTRACT 3 ARTICLE IV ..............................................................4 SHOP DRAWINGS 4 ARTICLE V ...............................................................5 MATERIALS, WORKMANSHIP, SAMPLES AND TESTS 5 ARTICLE VI ..............................................................5 ROYALTIES AND PATENTS 5 ARTICLE VII ..............................................................5 PERMITS, LAWS AND REGULATIONS 5 ARTICLE VIII .............................................................6 PROTECTION OF PERSONS, WORK AND PROPERTY 6 DUST CONTROL 6 POLLUTION CONTROL 7 INDENVINIFICATION 7 PUBLIC SAFETY AND TRAFFIC CONTROL 8 ARTICLE IX .............................................................10 INSPECTION OF WORK 10 ARTICLE X ..............................................................10 SUPERINTENDENCE AND SUPERVISION 10 ARTICLE XI .............................................................I1 CHANGE ORDERS 11 ARTICLE XII .............................................................13 TIME ..............................................................13 DEFINITIONS 13 PROGRESS AND COMPLETION 13 ARTICLE XIII ............................................................13 CONSTRUCTION SCHEDULE 13 ARTICLE XN ............................................................13 INSURANCE .......................................................13 ARTICLE XV .............................................................18 BONDS ............................................................18 ARTICLE XVI ............................................................18 PREVAILING WAGES ...............................................18 EMPLOYMENT OF APPRENTICES 19 TRAVEL AND SUBSISTENCE 19 PAYROLL RECORDS 19 ARTICLE XVII ...........................................................19 PAYMENTS AND COMPLETION 19 CONTRACT SUM 19 SCHEDULE OF VALUES 20 APPLICATIONS FOR PAYMENT 20 CERTIFICATES FOR PAYMENT 21 PAYMENTS WITHHELD 21 TIME OF PAYMENT 22 SUBSTANTIAL COMPLETION 22 FINAL COMPLETION AND FINAL PAYMENT 22 DELAYS .....................................................23 ARTICLE XVIII .......................................24 CORRECTION OF WORK BEFORE FINAL PAYMENT 24 ARTICLE XIX ............................................................24 CORRECTION OF WORK AFTER FINAL PAYMENT 24 ARTICLE XX .............................................................24 TOWN'S RIGHT TO DO WORK 24 ARTICLE XXI ............................................................24 TOWN'S RIGHT TO STOP THE WORK 24 ARTICLE XXII ..........25 TOWN'S RIGHTS AND DUTIES 25 ARTICLE XXIII ...........................................................25 TOWN'S RIGHT TO TERMINATE CONTRACT 25 ARTICLE XXIV ...........................................................25 CONTRACTOR'S RIGHT TO STOP WORK AND TERMINATE CONTRACT 25 ARTICLE XXV ...........................................................26 ASSIGNMENT ......................................................26 ARTICLE XXVI ...........................................................26 SUBCONTRACTS 26 ARTICLE XXVII ..........................................................26 SEPARATE CONTRACTS 26 ARTICLE XXVIII .........................................................26 ATTORNEYS' FEES 26 ARTICLE XXIX ...........................................................26 SUBCONTRACTORS ................................................26 AWARDS OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 26 SUBCONTRACTUAL RELATIONS 27 ARTICLE XXX ...........................................................28 CUTTING AND PATCHING 28 ARTICLE XXCI ...........................................................28 CLEANING UP ......................................................28 ARTICLE XXXH ..........................................................28 UNDERGROUND OBSTRUCTIONS 28 ARTICLE X XIH .........................................................28 AGREEMENT TO ASSIGN ANTITRUST CLAIMS 28 ARTICLE X XIV .........................................................29 RESOLUTION OF CLAIMS & DISPUTES 29 MEDIATION .......................................................30 ARBITRATION .....................................................30 Town of Tiburon State of California SECTION 5 GENERAL CONDITIONS ARTICLE I DEFINITIONS A. Contract Documents: Invitation for Bids, Instructions to Bidders, accepted bid proposal, bonds, Town-Contractor Agreement, General Conditions of the contract, any Special Conditions, drawings and specifications, including all modifications thereof and addenda thereto incorporated in the documents before their execution. B. Town: The Town of Tiburon, a municipal corporation of the State of California. For purposes of the indemnity and insurance provisions of this Agreement (in Articles VIII and XIV), "Town" shall also include the Town's officials, agents, employees and servants. C. Engineer: The Town Engineer or his authorized agent, acting within the scope of his authority who shall act as representative of the Town during the term of the contract. D. Design Engineer: The person or persons responsible for the design and plans for the Work. Unless otherwise indicated, the Design Engineer for the Work shall be Joseph Buel Engineering of San Rafael, California. E. Contractor: The prime contractor identified as such in the accepted bid proposal and the Town- Contractor Agreement. F. Subcontractors: Those persons or entities having a direct contract with the Contractor and including, without limitation, one who furnishes materials worked to a special design according to the plans of specifications of this project, but not including one who merely furnishes material not so worked. G. Inspector: The person or persons appointed by Town or Engineer for general liaison between Engineer and Contractor, for keeping of daily reports, job schedules, records of tests and approvals, general inspection of the work for quality, quantity, and compliance with drawings, plans, specifications and other Contract Documents. When an Inspector has not been appointed, then functions and duties of Inspector shall be discharged and performed by Engineer. H. The Work: The project or improvements that are the subject of and described in the Contract Documents. I. Written Notice: Such notice that has been delivered in writing in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended or if delivered at or sent by registered mail or certified mail to the last business address known to him who gives notice. J. Sureties: The surety company that issued the bonds required under Article XV of this Agreement. 5-1 ARTICLE II EXECUTION, CORRELATION AND INTENT OF DOCUMENTS A. Execution of the Tiburon-Contractor Agreement by the Contractor is a representation that the Contractor has visited the Site, reviewed the Contract Documents, become familiar with the local conditions under which the Work is to be performed, and has correlated personal observations with the requirements of the Contract Documents. B. The Contract Documents shall be signed in duplicate by Town and Contractor. In case either Town or Contractor or both fail to sign the General Conditions, Special Conditions, if any, drawings, specifications and plans, Engineer shall identify them. The Contract Documents are complementary, and what is called for by one shall be as binding as if called for by all. The intention of the documents is to include all labor, materials, equipment and transportation necessary for the proper execution of the work. Materials or work described in words which, so applied have a well-known technical or trade meaning, shall be held to refer to such recognized standards. C. Contractor shall execute the work pursuant to the Contract Documents and shall make no changes therefrom without written permission of Engineer. Where detailed information is lacking, Contractor shall refer matter to Engineer for information before proceeding with such work. D. The General Conditions apply with equal force to Contractor, subcontractors, work, extra work, and the like that may be specified herein or performed in or about the improvement or work under this contract. E. The misplacement, addition, or omission of any word, letter, number or punctuation mark will in no way change the "real, true spirit, intent or meaning" of the plans, specifications and drawings; any part of the work, or any article pertaining thereto which is not specifically set forth in the specifications or shown on the plans or drawings but which is obviously necessary for proper construction of the work, is to be supplied and set in place at the Contractor's expense the same as if shown on the plans, drawings and mentioned in the specifications. F. Should an error in consistency, omission or lack of coordination appear in the drawings, plans, specifications, work, or in work done by others affecting this project or improvement, the Contractor shall notify the Engineer at once, and the Engineer will issue instructions as to procedure. If the Contractor proceeds with the work so affected without instructions from the Engineer, he shall make good any resulting damage or defect. This includes typographical errors in the specifications and notational errors on the drawings or plans where doubtful of interpretation. G. The abbreviation or simplification of drawings or details does not constitute a reason for extra charges or the omission of work required. Structural details shall not be required to show architectural finishes or vice versa. Under no conditions shall customary abbreviations or simplification of details, plans or drawings be interpreted by the Contractor as errors or omissions. H. Where not specifically stated otherwise all work and material necessary for each unit or portion of construction, including special construction for any specific brand or shape of material called for, even though only briefly mentioned or indicated, shall be furnished and installed fully and completely as a part of the contract. List rules and regulations referred to are recognized printed standards and shall be considered as one and a part of these specifications within the limits specified. 5-2 J. The Engineer may furnish additional details to more fully explain the work and shall correct and approve shop drawings as required. Such details and approved shop drawings shall be considered a part of the Contract Documents. Any work done before receipt of such details, if not in accordance with the same, shall be removed, replaced or adjusted as directed by Engineer and without expense to the City. K. The Contractor shall comply with the obvious intent and meaning of these plans and specifications, which shall be construed to include all materials, measures and modes of work necessary to complete the Work in a workmanlike manner, in strict accordance with plans, specifications and drawings, and to the satisfaction of Town and Engineer. Should any question arise as to the intent and interpretation of the plans, drawings or specifications, Contractor shall refer the same in writing to Engineer, whose decision thereon shall be final. ARTICLE III ADMINISTRATION OF THE CONTRACT A. The Engineer will assist the Town with administration of the Contract as hereinafter described. The Engineer will be the Town's representative during construction and until final payment to all the Contractors is approved. The Engineer will advise and consult with the Town. All communications from the Contractor will be made directly to the Town. All instructions to the Contractor shall be forwarded through the Town. The Engineer will determine in general that the Work of the Contractor is being performed in accordance with the Contract Documents and will endeavor to guard the Town against defects and deficiencies in the Work of the Contractor. No act or omission of the Engineer will relieve Contractor of responsibility or liability for defects and deficiencies in the work. The Engineer will visit the Site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. The Engineer and the Town shall at all times have access to the Work wherever it is in preparation and progress. The Contractor shall provide facilities and/or equipment for such access so that the Engineer and The Town may perform their functions under the Contract Documents. The Engineer will be the initial interpreter of the aesthetic and technical requirements of the Contract Documents. The Contractor may make written request to the Town for interpretations necessary for the proper execution or progress of the Work. The Town will refer such written requests to the Engineer, who will render such interpretations within a reasonable time after his receipt of the request. Where the Contractor has requested an interpretation from the Town, or been notified by the Town such interpretation has been requested, any Work done before receipt of such interpretations, if not in accordance with same, shall be removed and replaced or adjusted as directed by the Town without additional expense to the Town. All interpretations of the Engineer shall be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in graphic form. The Engineer will have authority to reject Work which does not conform to the Contract Documents, and to require special inspection or testing, but will take such action only after consultation with the Town. Whenever, in the Engineer's opinion, it is considered necessary or advisable for the implementation of the intent of the Contract Documents, the Engineer will have authority to require special inspection or testing of the Work in accordance with the Contract Documents after consultation with the Town, whether or not such Work be then fabricated, 5-3 installed or completed. However, the Engineer's authority to act under this Article, and any decision made by it in good faith either to exercise or not to exercise such authority shall not give rise to any duty or responsibility of the Engineer to the Contractor, any Subcontractor, any of their agents or employees, or any other person performing any of the Work. B. Except as provided elsewhere in the Contract Documents, the Engineer will not be responsible for or have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work. Except as provided elsewhere in the Contract Documents, the Engineer will not be responsible for or have control or charge over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work. The Contractor shall be responsible for the foregoing matters and with due diligence shall provide competent quality assurance and inspection of all phases of the Work prior to a formal request by the Contractor to have the Town review the Work for completion. C. The Contractor shall submit all Shop Drawings, Product Data and Samples to the Engineer for his review. The Engineer will review and take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples within 10 working days from Engineer's receipt of the submission, with an additional 5 working days should sub-consultant review be required, but only for conformance with the design concept of the Work and the information given in the Contract Documents. The Town, with the assistance of the Engineer, will conduct inspections to determine the dates of Substantial Completion of the Work and Final Completion of the Work, and will receive all written warranties and related documents required by the Contract and assembled by the Contractor. The Town will issue a final Certificate for Payment upon compliance with the requirements of Article XVII. In case of the termination of the employment of the Engineer, the Town shall appoint a new Engineer whose status under the Contract Documents shall be that of the former Engineer. D. The Town Manager or his designee shall be authorized to act on behalf of the Town with respoect to the day-to-day administration of the Contract; change orders affecting the Contract Price by $10,000 (ten thousand dollars) or less or the Scheduled Completion Date by 14 (fourteen) calendars days or less; or any other actions that, in the judgement of the Manager must be taken promptly (i.e., before the Town Council could, as a practical matter, meet and resolve to take the action) in order to protect the interests of the Town. E. At any time during progress of the Work, the Town shall have authority to require the Contractor and any subcontractors to attend a job-site conference. Any notice of such conference shall be duly observed and complied with by the Contractor and Subcontractors. These conferences may be held every two weeks during construction, with additional intermediate meetings as necessary during the course of construction. ARTICLE IV SHOP DRAWINGS The Contractor shall submit two copies of all shop or setting drawings and schedules for the work of the various trades with such promptness as to cause no delay in his own work or that of any other contractor. The Contractor shall make any corrections required by the Engineer and file with Engineer one corrected copy and furnish such other copies as may be needed by Engineer or Town. The approval of the Engineer of such drawings or schedules shall not relieve 5-4 the Contractor from responsibility for deviations from drawings or specifications, nor shall it relieve him of responsibility for errors of any sort in shop drawings or schedules. ARTICLE V MATERIALS, WORKMANSHIP, SAMPLES AND TESTS A. Contractor warrants that materials shall be new and of quality equal to that specified. When not particularly specified, materials shall be the best of its class or kind. The Contractor shall, if required, submit satisfactory evidence as to the kind of and quality of material. B. Contractor warrants that all labor used in this contract shall be competent and skilled for the work, and that all work under this contract shall be done in the best, most thorough, substantial and workmanlike manner, free from defects and in conformance with the Contract Documents. C. The Contractor shall promptly remove from the premises all materials rejected by the Engineer or Inspector as failing to conform to the Contract Documents, whether incorporated in the work or not; and the Contractor shall promptly replace and re-execute his own work in accordance with the Contract and without expense to the Town, and shall bear the expense of making good all work of other contractors destroyed, impaired or damaged by such removal. D. Whenever any item or class of material is specified by trade name, manufacturer's name, or by catalog reference, such item or class of material "or its equal" shall be used. Substitution by Contractor of an item or class of material as an "or equal" to that specified must receive written approval of Engineer, and Contractor shall have a period of thirty days after award of contract to request approval of the substitution and to submit data substantiating a request for a substitution of "an equal" item or class of material. ARTICLE VI ROYALTIES AND PATENTS The Contractor shall pay all royalties and license fees. Contractor shall defend all suits or claims for infringement of any patent rights and shall save the Town harmless from loss on account thereof, except that the Town shall be responsible for all such loss when a particular process or the product of a particular manufacturer or manufacturers is specified; but if the Contractor has information that the process or article specified is an infringement of a patent, he shall be responsible for such loss unless he promptly gives information of the same to the Engineer. ARTICLE VII PERMITS, LAWS AND REGULATIONS A. Permits, taxes and licenses necessary for the prosecution of the Work shall be secured and paid for by Contractor. B. The Contractor shall give all notices and comply with all laws, ordinances, statutes, rules and regulations bearing on the conduct of the Work. If Contractor observes that the drawings and specifications are at variance therewith, he shall promptly notify the Engineer in writing, and any necessary changes shall be adjusted as provided in the contract for changes in the Work. If the Contractor performs any work contrary to such work laws, statutes, ordinances or rules and regulations, and without notice to the Engineer, he shall bear all costs arising therefrom. 5-5 C. Contractor shall secure certificates of inspection, use and occupancy that may be required by all authorities having jurisdiction over the Work or any portion thereof. D. The Contractor shall pay all fees for required work to be performed on site utilities and services. These fees shall be included in the Contract Sum. ARTICLE VIII PROTECTION OF PERSONS, WORK AND PROPERTY A. Contractor shall continuously maintain adequate protection of all the Work from damage, including, without limitation, vandalism or other abuse, and shall protect the Town's property from injury or loss arising out of or in connection with this contract. Contractor shall make good any such damage, injury or loss, except such as may be directly due to errors or omission in the Contract Documents, or such as caused by agents or employees of the Town, or such as due to causes beyond the Contractor's control and not by reason of his fault or negligence. Contractor shall adequately protect all adjacent property in the manner provided by law. The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damages, injury or loss to employees, the Work and all persons who may be affected thereby, and shall comply with all applicable provisions of federal, state and local safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the Work. Contractor shall erect and properly maintain at all times, as required by the conditions and progress of the Work, all necessary safeguards for the protection of the workmen and the public, and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, holes, elevator hatchways, scaffolding, excavations, window openings, stairways, falling timbers, and the like, and shall designate a responsible member of his organization on the work whose duty shall be to prevent accidents. B. In an emergency affecting the safety of life or of the Work or of adjoining property, the Contractor without special instruction or authorization from the Town or Engineer is hereby permitted to act at his discretion to prevent such threatened loss or injury, and he shall so act, without appeal, if so authorized or instructed. Any compensation claim by Contractor on account of emergency work shall be certified only after approval of itemized costs and written justification for such work. C. Contractor shall provide and maintain guard lights at barricades, obstructions and streets, roads, sidewalks, trenches, holes, or ditches adjacent to public or private roadway or traffic thoroughfares. D. Contractor shall provide constant protection against storms, frost, heat, and the elements, so as to maintain work, materials, apparatus, and fixtures free from damage or injury. Contractor shall remove work damaged by weather and/or failure of Contractor to provide protection therefrom and shall replace the same with new work and materials without cost to Town. DUST CONTROL E. The Contractor shall provide as much water, dust palliative, or other authorized material, and the labor and devices necessary to spread such material, as the Town deems necessary to control dust. The Contractor shall provide any and all dust control required by the Town or any regional, state or federal governmental entity having jurisdiction over the Site or the Project. The payment for dust control shall be considered as included in other items of work and no additional compensation shall be made therefore, unless otherwise provided by the Contract Documents. Whenever the Contractor is negligent in providing adequate dust control, the Town shall order the Contractor to provide such adequate dust control, and if the Contractor does not comply 5-6 forthwith with such order, the Town shall have the authority to suspend the Work, wholly or in part, for such period as the Town may deem necessary until the Contractor provides adequate dust control to the satisfaction of the Town, or the Town may provide such dust control and charge the Contractor therefor by deducting the cost thereof from periodic payments to the Contractor as such costs are incurred by the Town. POLLUTION CONTROL F. The Contractor shall not, in connection with the Work, discharge any smoke, dust or other contaminants into the atmosphere or discharge any fluids or materials into any lake, river, stream, or channel as will violate any federal, state or local laws or regulations of any legally constituted authority. The Contractor shall control accumulation of waste materials and rubbish and dispose waste materials and rubbish off-site in at least weekly intervals. Burning of materials is not permitted. INDEMNIFICATION G. To the full extent permitted by law and excepting only the active negligence of Town, established by a court of competent jurisdiction or written agreement between the parties, Contractor shall defend, indemnify and hold harmless Town, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, actual attorney fees incurred by Town, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation incurred in relation to, as a consequence of or arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part to the performance of this Contract. All obligations under this provision are to be paid by Contractor as incurred by Town. Contractor acknowledges that Town would not enter into this agreement in the absence of this commitment from Contractor to indemnify and protect Town as set forth in this section. Without affecting the rights of Town under any provision of this Contract or this section, Contractor shall not be required to indemnify and hold harmless Town as set forth above for liability attributable to the active negligence of Town, provided such active negligence is determined by agreement between the parties or the findings of a court of competent jurisdiction. This exception will apply only in instances where the Town is shown to have been actively negligent and not in instances where Contractor is solely or partially at fault or in instances where Town's active negligence accounts for only a percentage of the liability involved. In those instances, the obligation of Contractor will be for that portion or percentage of liability not attributable to the active negligence of Town as determined by written agreement between the parties or the findings of a court of competent jurisdiction. The obligations of Contractor under this or any other provision of this agreement will not be limited by the provisions of any workers' compensation act or similar act. Contractor expressly waives its statutory immunity under such statutes or laws as to Town, its employees or officials. Contractor shall obtain executed indemnity agreements with provisions identical to those set forth here in this section from each and every subcontractor, subtier contractor or any other person or entity involved by, for, with or on behalf of Contractor in the performance or subject matter of this agreement. In the event Contractor fails to obtain such indemnity obligations from others required here, Contractor agrees to be fully responsible according to the terms of this section. Failure of Town to monitor compliance with these requirements imposes no additional obligations on Town and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend Town as set forth herein is binding on the successors, assigns, or heirs of Contractor and shall survive termination of this agreement or this section. 5-7 In any and all claims against the Town, the Engineer or any of their agents, employees, successors or assigns by any employee of the Contractor, any subcontractor, any supplier of the Contractor or subcontractors, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation under this Paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any subcontractor or any supplier of either of them under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. The obligations of the Contractor under this Paragraph shall not extend to the liability of the Engineer, its agents or employees, arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Engineer, its agents or employees, provided such giving or failure to give is the primary cause of the injury or damage. PUBLIC SAFETY AND TRAFFIC CONTROL H. The Contractor shall so conduct his operations as to offer the least possible obstruction and inconvenience to the public and he shall have under construction no greater length or amount of Work than he can prosecute properly with due regard to the rights of the public. Unless otherwise provided elsewhere in the Contract Documents, all traffic shall be permitted to pass through the Work with as little inconvenience and delay as possible. Spillage resulting from hauling operations along or across the traveled way shall be removed immediately at the Contractor's expense. Existing traffic signal and right-of-way lighting systems shall be kept in operation for the benefit of the traveling public during progress of the Work, and Town forces may continue routine maintenance of existing systems. Convenience of abutting owners along the right-of-way shall be provided for as far as practicable. Convenient access to driveways, parking, and buildings along the line of the Work shall be maintained and temporary approaches to crossings or intersecting right-of-ways shall be provided and kept in good condition. When the abutting property owner's access across the right-of-way line is to be eliminated, or to be replaced under the contract or by other access facilities, the existing access shall not be closed until the replacement facilities have been completed. In order to expedite the passage of public traffic through or around the Work or where ordered by the Town, the Contractor shall install signs, lights, flares, barricades and other facilities for the sole convenience and direction of public traffic. Also, where directed by the Town, Contractor shall provide and station competent flagpersons whose sole duties shall consist of directing the movement of public traffic through or around the Work. The Contractor shall be required to pay the cost of replacing or repairing all facilities installed for the convenience of direction or warning of public traffic, that are lost or damaged by reason of his operations to such an extent as to require replacement or repair. Except as otherwise provided elsewhere in the Contract Documents, full compensation for conforming to the requirements of this section shall be considered as included in the prices paid for the various contract items of Work and no additional allowance will be made therefor. It is the Contractor's responsibility to provide for the safety of the public during construction. Whenever the Contractor's operations create a condition hazardous to traffic or to the public, Contractor shall furnish at Contractor's own expense, and without cost to the Town, such flagpersons and guards as are necessary to give adequate warning to the public of any dangerous conditions to be encountered and Contractor shall furnish, erect, and maintain such fences, 5-8 barricades, lights, signs, and other devices and take such other protective measures as are necessary to prevent accidents or damage or injury to the public. All traffic control signs, barricades, lights and other warning and safety devices shall conform to the current "Manual of Warning Signs, Lights, and Devices for Use in Performance of Work upon Highways" issued by the State of California Department of Transportation. Should the Contractor appear to be neglectful or negligent in furnishing warning devices and taking protective measures, as above provided, the Town may direct attention to the existence of a hazard and the necessary warning devices shall be furnished and installed by the Contractor at his expense. Should the Town point out the inadequacy of warning devices and protective measures, such action on the part of the Town shall not relieve the Contractor from responsibility for public safety or abrogate his obligation to furnish and pay for these devices and measures. The installation of general right-of-way illumination shall not relieve the Contractor of his responsibility for furnishing and maintaining any of the protective facilities hereinbefore specified. Should the Contractor fail to, be neglectful, or negligent in furnishing and/or maintaining warning and protective facilities as required herein, the Town may furnish and/or maintain such facilities and charge Contractor therefor by deducting the cost thereof from periodic progress payments due the Contractor as such costs are incurred by the Town. In the event the Contractor does not provide such flagpersons and guards as are required by this Article, the Town may request the Tiburon Police Department to the job and the cost to the Town for providing flagpersons and guards shall be deducted from any periodic progress payments due the Contractor. No material or equipment shall be stored where it will interfere with the free and safe passage of public traffic, and at the end of each day's work and at other times when construction operations are suspended for any reason, the Contractor shall remove all equipment and other obstructions from that portion of the right-of-way open for use by public traffic. Full compensation for conforming to all of the provisions of this Section shall be considered as included in the prices paid for the various contract items of Work and no additional allowance will be made therefor. Due care shall be exercised to avoid injury to existing right-of-way improvements or facilities, utility facilities, adjacent property, and roadside trees and shrubbery that are not to be removed. Roadside trees and shrubbery that are not to be removed and pole lines, fences, signs, survey markers and monuments, buildings and structures, conduits, pipe lines under or above ground, sewer and water lines, all right-of-way facilities, and any other improvements or facilities within or adjacent to the Work, shall be protected from injury or damage, and if ordered by the Town, the Contractor shall provide and install suitable safeguards, approved by the Town, to protect such objects from injury or damage. If such objects are injured or damaged by reason of the Contractor's operations, they shall be replaced or restored, at the Contractor's expense, to a condition as good as when the Contractor entered upon the Work, or as good as required by the Contract Documents, if any such objects are a part of the Work being performed under the Contract. The fact that any underground non-utility facility or any existing service lateral or appurtenances, wherever the presence of such lateral or appurtenances can be inferred from the presence of other visible facilities such as buildings, meter and junction boxes on or adjacent to the construction site, are not shown upon the Plans shall not relieve the Contractor of his responsibility under this Article. To the extent allowed by law, it shall be the Contractor's responsibility to ascertain the 5-9 existence of any underground improvements, except for unmarked existing main and trunkline utility facilities, which may be subject to damage by reason of his operations. Full compensation for furnishing all labor, materials, tools and equipment and doing all the work involved in protecting property as above specified, shall be considered as included in the prices paid for the various contract items of Work and no additional compensation will be made therefor. ARTICLE IX INSPECTION OF WORK A. Engineer and the Inspector and their representatives shall at all times have access to the Work whether it is in preparation or progress, and the Contractor shall provide proper facilities for such access and inspection. If the specifications, the Engineer's instructions, laws, statutes, ordinances, or regulations of any public authority require any work to be specially tested or approved, the Contractor shall give the Engineer timely notice of its readiness for inspection, and if the inspection is by another authority than the Engineer, of the date fixed for such inspection, required certificates of inspection being secured by the Contractor. Inspections by the Engineer shall be promptly made, and where practical, at the source of supply. If any work should be covered up without approval or consent of the Engineer, it must, if required by the Engineer, be uncovered for examination at the Contractor's expense. Re-examination of questioned work may be ordered by the Engineer; and if so ordered, the work must be uncovered by the Contractor. If such work is found in accordance with the Contract Documents, the Town shall pay the cost of re-examination and replacement unless the same was originally covered up without approval or consent of the Engineer. If such work is found not in accordance with the Contract Documents, the Contractor shall pay such cost. ARTICLE X SUPERINTENDENCE AND SUPERVISION A. The Contractor shall keep on its work, during its progress, a competent superintendent and any necessary assistants, all to be satisfactory to the Engineer. The superintendent shall not be changed except with the consent of the Engineer, unless the superintendent proves to be unsatisfactory to the Contractor and ceases to be in his employ. The superintendent shall represent the Contractor in his absence, and all directions given to him shall be as binding as if given to the Contractor. Important directions shall be confirmed in writing to the Contractor. Other directions shall be confirmed on written request in each case. The Contractor shall give efficient supervision to the work, using his best skill and attention. He shall carefully study and compare all plans, drawings, specifications, and other instructions and shall report at once to the Engineer any error, but he shall not be liable to Town for any damage resulting from any errors, omissions or deficiencies in the Contract Documents or other instructions by the Engineer. B. If at any time any worker or employee shall be employed by the Contractor or any of his subcontractors who is declared by the Engineer to be incompetent or unfaithful in the execution of the work, the Contractor, on receiving written notice thereof, shall forthwith remove said worker or employee from the project and shall not again employ him or her on any part of the work. 5-10 ARTICLE XI CHANGE ORDERS A. Change Order is a signed written order to the Contractor showing the recommendation of the Engineer, the approval of the Engineer and the authorization of the Town, issued after execution of the Contract, authorizing a change in the Work and/or an adjustment in the Contract Sum and/or the Contract Time. The Contract Sum and the Contract Time may be changed only by Change Order. Any Change Order signed by the Contractor shall indicate the Contract Sum and the Contract Time. Adjustments of Contract Time, Work or Sum may be issued without notice to Sureties, and absence of such notice shall not relieve the Sureties of any responsibilities. No Change Order shall operate to authorize a time extension, unless such Change Order specifies such extension. If no time extension has been granted in such Change Order, Contractor agrees that in no event shall Contractor make any subsequent claim relating to the items covered by such Change Order. B. The Town, without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and the Contract Time being adjusted accordingly. All such changes in the Work shall be authorized by Change Order, and shall be performed under the applicable conditions of the Contract Documents. A Contract Change Order will not become effective until approved by the Town. C. The cost or credit to the Town resulting from a change in the work shall be determined as follows: If a proposed Change Order requires an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods, at the discretion of the Town: 1 Mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; 2 Unit prices stated in the contract Documents or subsequently agreed upon; 3 On the basis of time and material actually and properly incurred, in accordance with Paragraph F, and percentage fees for profit and overhead as set forth in Paragraph H below. D. The Town may issue a Change Order directive in the absence of total agreement on the terms of a Change Order. If the Town issues a Change Order directive, the Contractor shall advise the Engineer and Town of the Contractor's agreement or disagreement with the method, if any, provided in the Change Order directive for determining the proposed adjustment in the Contract Sum or Contract Time. Where time does not permit the processing of a proposed Change Order prior to commencing the work, Contractor shall, upon written order from the Town, proceed with the work while concurrently proceeding with preparation and submission of a Change Order estimate. E. A proposed Change Order signed by the Town and Contractor indicates the agreement of the Town and Contractor therewith, including adjustment in Contract Sum and Contract Term or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. The Contractor shall then promptly proceed with the change in the work involved. F. If the Contractor does not respond promptly or disagrees with the method of adjustment in the Contract Sum, the method and the adjustment shall be determined by the Engineer on the basis of reasonable expenditures and savings of those performing the work attributable to the change, including in the case of an increase in the Contract Sum, overhead and profit as set forth in 5-11 Paragraph H. In such case, and also under Paragraph C.1, the Contractor shall keep and present, in such form as the Engineer may prescribe, an itemized accounting together with appropriate supporting data. Change Order costs shall be limited to the following reasonable and normal direct costs of the change: 1. costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' or workmen's compensation insurance; 2. costs of materials, supplies and equipment, including cost of transportation and sales tax, whether incorporated or consumed; 3. rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; 4. sales, use and similar taxes related to the work; 5. additional direct costs of supervision and field office personnel directly attributable to the change (other than those listed under Paragraph H below). Without limiting the foregoing, the Contractor shall only be entitled to additional reimbursement for the costs associated with maintaining personnel in the field if the change directly necessitates an extension of the Contract Time. G. Pending final determination of cost to the Town, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the Town for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost decrease as confirmed by the Engineer. When both additions and credits covering related work or substitutions are involved in a change, the allowance for overhead and profit under this Article shall be figured on the basis of net increase, if any, with respect to that change. H. Contractor's markups: 1. For labor, materials and equipment by the Contractor's own forces, the Contractor may add a fee for Contractor's profit and overhead of 10%, computed as a percentage of the subtotal of the direct labor, materials and equipment costs attributable to the changes, as defined in Paragraph F. This fee shall include the following overhead costs: estimating costs, bonds, builder's risk insurance, liability insurance, and small tools. 2. For work performed by Subcontractor, the Contractor's charges to the Town.may include the Subcontractor's direct costs, plus the Subcontractor's fee not exceeding 20% (overhead plus profit), plus a maximum fee for Contractor's profits and overhead of 10% (including the costs set forth in subparagraph H.1) computed as a percentage of the total of the Subcontractor's charges. 3. For work performed by sub-subcontractors, or other lower-tier subcontractors, fees and overhead not exceeding the Subcontractors' fees and overhead described in the above subparagraph H.2 may be added to the sub-subcontractors' charges to the Subcontractor. In such event, the Contractor and the Subcontractor shall share amongst themselves a fee for their profit and overhead of 10% (including the costs set forth in subparagraph H.1), computed as a percentage of the total of the sub-subcontractor's or other, lower-tiered subcontractor's charges. For purposes of this section, "lower-tiered subcontractors" shall include, without limitation, material suppliers. Percentage markups for profit shall not be applied to the indirect overhead costs of estimating, bonds, insurance and small tools. 5-12 ARTICLE XII TIME DEFINITIONS A. Unless otherwise provided, the Contract Time is the period of time allotted in the Contract Documents for Substantial Completion of the Work as defined in this Article, including authorized adjustments thereto. The date of commencement of the Work is on the date specified on the Notice to Proceed issued by the Town. The Date of Substantial Completion of the Work or designated portion thereof is the Date certified by the Engineer, and in the judgment of the Engineer the work is substantially complete, i.e. construction is sufficiently complete, in accordance with the Contract Documents, so the Town can occupy or utilize the Work or designated portion thereof for the use for which it was intended. The term day as used in the Contract Documents shall mean calendar day unless specifically designated otherwise. PROGRESS AND COMPLETION B. All time limits stated in the Contract Documents are of the essence in performance and completion of the Work. The Contractor shall begin the Work on the date of commencement as defined in Section A above. The Contractor shall carry the Work forward expeditiously with adequate forces and shall achieve Substantial Completion of the Work within the Contract Time. ARTICLE XIII CONSTRUCTION SCHEDULE The Contractor shall provide a detailed construction schedule showing the proposed dates of start and completion of all trades and parts of the Work of this project. This schedule shall be approved by the Engineer prior to start of construction and shall be updated as necessary. In the event that the approved schedule becomes obselete and the Contractor fails to promptly submit an updated schedule for the Engineer's approval, the Town may withhold any progress payments otherwise due until the Contractor submits an updated schedule. ARTICLE XIV INSURANCE A. CONTRACTOR'S LIABILITY INSURANCE Contractor shall provide and maintain insurance as set forth in this Article on behalf of the Town. Commercial General Liability Insurance (primary) shall be provided on ISO-CGL form No. CG 00 01 11 85 or 88. Policy limits shall be no less than one million dollars per occurrence for all coverages and two million dollars general aggregate. Town and its employees and agents shall be added as additional insured using ISO form CG 20 10 11 85 (in no event with an edition date later than 1990). Coverage shall apply on a primary, non-contributing basis in relation to any other insurance or self-insurance, 5-13 primary or excess, available to Town or any employee or agent of Town. Coverage shall not be limited to the vicarious liability or supervisory role of any additional insured. Coverage shall contain no contractors' limitation endorsement. There shall be no endorsement or modification limiting the scope of coverage for liability arising from pollution, explosion, collapse, underground property damage or employment-related practices. Umbrella Liability Insurance (over primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum, and shall include a "drop down" provision providing primary coverage above a maximum $25,000.00 self-insured retention for liability not covered by primary policies but covered by the umbrella policy. Coverage shall be following form to any underlying coverage. Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross liability exclusion and no contractor's limitation endorsement. Policy limits shall be not less than five million dollars per occurrence and in the aggregate, above any limits required in the underlying policies. The policy shall have starting and ending dates concurrent with the underlying coverages. Business Auto Coverage shall be written on ISO Business Auto Coverage from CA 00 01 06 92 including symbol 1 (Any Auto). Limits shall be no less than one million dollars per accident. This policy shall be scheduled as underlying insurance to any umbrella policy required above for a total limit of no less than five million dollars each accident. Workers' Compensation/Employer's Liability shall provide workers' compensation statutory benefits as required by law. Employer's liability limits shall be no less than one million dollars per accident or disease. Employer's liability coverage shall be scheduled under any umbrella policy described above. Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects the Town, its employees or agents. Contractor and Town further agree as follows: 1 This Section supersedes all other sections and provisions of this Contract to the extent that any other section or provision conflicts with or impairs the provisions of this Section. .2 The insurance requirements set forth in this Section are intended to be separate and distinct from any other provision in this Contract and shall be interpreted as such. .3 All insurance coverage and limits provided pursuant to this Contract shall apply to the full extent of the policies involved, available or applicable. Nothing contained in this Contract or any other contract relating to the Town or its operations limits the application of such insurance coverage. Nothing contained in this Section is to be construed as affecting or altering the legal status of the parties to this Contract. .4 For purposes of insurance coverage only, this Contract will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance or towards, performance of this Contract. .5 Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only and is not intended by any party to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. .6 All general or auto liability insurance coverage provided pursuant to this Contract, or any other contract pertaining to the performance of this Contract, shall not prohibit Contractor, and Contractor's employees, or agents, from waiving the right of subrogation prior to a loss. Contractor waives its right of subrogation against Town. 5-14 .7 Unless otherwise approved by Town, Contractor's insurance shall be written by insurers authorized to do business in the State of California and with a minimum "Best's" Insurance Guide rating of "ANII." Self-insurance will not be considered to comply with these insurance specifications. In the event any policy of insurance required under this Contract does not comply with these requirements or is canceled and not replaced, Town has the right but not the duty to obtain the insurance it deems necessary and any premium paid by Town will be promptly reimbursed by Contractor. .9 Contractor agrees to provide evidence of the insurance required herein, satisfactory to Town, consisting of certificate(s) of insurance evidencing all of the coverages required and an additional insured endorsement to Contractor's general liability and umbrella liability policies using ISO form CG 20 10 11 85 prior to commencing work under this Concrete. Certificate(s) are to reflect that the insurer will provide 30 days notice of any cancellation of coverage. Contractor agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. .10 Contractor shall provide proof that policies of insurance required herein expiring during the term of this Contract have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished within 72 hours of the expiration of the coverages. 11 Any actual or alleged failure on the part of the Town or any other additional insured under these requirements to obtain proof of insurance required under this Contract in no way waives any right or remedy of Town or any additional insured, in this or any other regard. 12 Contractor agrees to require all subcontractors or other parties hired for this project to purchase and maintain insurance of the type specified above naming as additional insureds all parties to this Contract. Contractor agrees to obtain certificates evidencing such coverage and make reasonable efforts to ensure that such coverage is provided as required here. Contractor agrees to require that no contract used by any subcontractor, or contracts Contractor enters into on behalf of Town, will reserve the right to charge back to Town the cost of insurance required by this Contract. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor contracts with on behalf of Town, and all certificates of insurance obtained in compliance with this paragraph will be submitted to Town for review. Failure of Town to request copies of such documents will not impose any liability on Town, or its employees. .13 Contractor agrees to provide immediate notice to Town of any claim or loss against Contractor that includes Town as a defendant. Town assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve Town. .14 In the event of any loss that is not insured due to the failure of Contractor to comply with these requirements, Contractor agrees to be personally responsible for any an all losses, claims, suits, damages, defense obligations and liability of any kind attributed to Town, or Town's employees as a result of such failure. .15 Coverage will not be limited to the specific location or individual or entity designated as the address of the Project. .16 Contractor agrees not to attempt to avoid its defense and indemnity obligations to Town and its employees, agents, officials and servants by using as a defense Contractor's statutory immunity under workers' compensation and similar statutes. 5-15 .17 Contractor agrees to require all parties or subcontractors, including Engineers or others, with which it enters into contracts or hires pursuant to or related in any way with the performance of this Contract, to provide insurance covering the operations contracted for and naming as additional insureds all parties to this Contract. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided as required here. Contractor agrees that no contract, standard form or otherwise, used by any party in any way connected with this Contract, or contracts Contractor enters into on behalf of Town, will reserve the right to charge back to Town the cost of insurance required by this or any other contract. .18 Contractor agrees to have its coverage endorsed so that all coverage limits required pursuant to this requirement are available separately for each and every location at which Contractor conducts operations of any type on behalf of Town. Contractor warrants these limits will not be reduced or exhausted except for losses attributable to those specific locations and not by losses attributable to any other operations of Contractor. .19 Contractor agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and that there will be no cross liability exclusions that preclude coverage for suits between Contractor and Town or between Town and any other insured or Named Insured under the policy, or between Town and any party associated with Town or its employees. .20 For purposes of insurance coverage only, this Contract will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards, performance of this Contract. .21 Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor contracts with on behalf of Town, will be submitted to Town for review. Contractor acknowledges that such contracts or agreements may require modification if the insurance requirements do not reflect the requirements herein. Failure of Town to request copies of such agreements will not impose any liability on Town, or its employees. .22 If Contractor is a Limited Liability Company, general liability coverage must be amended so that the Limited Liability Company and its Managers, Affiliates, employees, agents, and other persons necessary or incidental to its operations are insureds. .23 Contractor shall maintain commercial general liability, and if necessary, commercial umbrella liability insurance with a limit of not less than five million dollars each occurrence for at least three years following substantial completion of the work. B. OTHER INSURANCE PROVISIONS The policies are to contain, or be endorsed to contain, the following provisions: .1 General Liability and Automobile Liability Coverages a. The Town, its officials, employees, agents and contractors, and Town's Design Engineer are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, leased or used by the Contractor; or automobiles owned, leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the Town, its officials, employees, agents, the Design Engineer, and contractors. b. The Contractor's insurance coverage shall be primary insurance as respects the Town, and/or the Tiburon Redevelopment Agency, its officials, employees, agents, and the Design Engineer. Any insurance or self-insurance maintained by the Town, its officials, employees, agents, contractors, or Design Engineer shall be excess of the Contractor's insurance and shall not contribute with it. 5-16 C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Town, its officials, employees, agents, or contractors. d. Coverage shall state that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. .2 All coverages Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the Town. C. ACCEPTABILITY OF INSURERS Insurance is to be placed with insurers acceptable to the Town Manager. D. VERIFICATION OF COVERAGE Contractor shall furnish the Town with certificates of insurance and with original endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Proof of Insurance shall then be mailed to: Town of Tiburon Town Manager 1505 Tiburon Boulevard Tiburon, California 94920 E. SUBCONTRACTORS Contractor shall include all subcontractors as insureds under its policies or shall obtain separate certificates and endorsements for each subcontractor. F. BAILEE DISCLAIMER Town in no way purports to be a bailee, and is therefore not responsible in any way for any damage to the property of others including, but not limited to, the property of Contractor, the Contractor's contractor, or their respective agents, employees and invitees. G. CONTRACTOR'S RESPONSIBILITY FOR WORK Until completion of the contract and final acceptance of the Work by the Town, the Contractor shall have the charge and care of and shall bear the risk of injury, loss, or damage to any part thereof by the action of the elements or from any other cause, whether arising from the execution or from the non-execution of the Work, or from any other cause. The Contractor shall rebuild, repair, restore, and make good all injuries, losses or damages to any portion of the Work occasioned by any cause before its completion and acceptance and shall bear the expense thereof, except as otherwise expressly provided in subparagraph 11.1.6. In case of suspension of Work from any cause whatever, the Contractor shall be responsible for the Work as above specified and he shall also be responsible for all materials delivered to the Work or materials which have been furnished by the Town. If ordered by the Town, the Contractor shall at Contractor's own expense, properly store materials which have been furnished by the Town. Such storage by the Contractor shall be on behalf of the Town, and the Town shall at all times be entitled to the possession of such materials, and the Contractor shall promptly return the same to the Site when requested. The Contractor shall not dispose of any of the materials so stored except on written authorization from the Town. 5-17 ARTICLE XV BONDS A. Faithful Performance Bond- The Contractor shall furnish a surety bond in an amount equal to 100% of the contract price as security for faith performance of this contract, including guarantees required hereunder. B. Labor and Materials Payment Bond- The Contractor shall also furnish a separate surety bond in 'an amount at least equal to 100% of the contract price as security for the payment of all persons performing labor and furnishing materials in connection with this contract. C. Defective Material & Workmanship Bond- The Contractor shall also furnish precedent to the completion of the contract, a separate surety bond in the amount equal to 10% of the total contract price, to hold good for a period of 1 year after the completion and acceptance of the Work, to protect the Town against the results of defective materials or workmanship during that time. This bond must be delivered to the Town before final payment under the contract will be made. D. Said bonds shall provide that no change, extension of time, alteration, or addition to the terms of the contract, or to the Work to be performed thereunder, or the plans, shall in any way affect the surety's obligation under the said bond, and shall further provide that notice of any such change is waived as well as notice of extensions of time, alteration, or additions to the terms of the contract, or to the Work provided thereunder, or to any of the Contract Documents. ARTICLE XVI PREVAILING WAGES A. The Contractor shall forfeit as penalty to the Town, $50.00 for each calendar day or portion thereof, for each worker paid less than the stipulated prevailing rates for such work or craft in which such worker is employed for any work done under this contract by him or by any subcontractor under him, in violation of the provisions of the Labor Code of the State of California, and in particular, Section 1770 to 1780 thereof, inclusive. The general prevailing rate of per diem wages and the general prevailing rate for holiday and overtime work in this locality for each craft, classification or type of worker needed to execute this contract is set forth in full in the document referred to in the Notice to Contractors of the Specifications. The holidays upon which such rates shall be paid shall be all holidays recognized in the collective bargaining agreement applicable to the particular craft, classification or type of worker employed on the Project. The difference between such stipulated prevailing wage rates and the amount paid to each worker for each calendar day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by the Contractor pursuant to the requirements of Section 1775 of the Labor Code of the State of California. The Town will not recognize any claim for additional compensation because of the payment by the Contractor of any wage rate in excess of the prevailing wage rate set forth in this contract. The possibility of wage increases is one of the elements to be considered by the Contractor in determining his bid, and will not under any circumstances be considered as the basis of a claim against the Town on this contract. Notwithstanding any other provision of the Contract Documents to the contrary, the general prevailing rate of wages in this locality for each craft, classification, or type of worker needed to execute the Contract for the Work (which rate includes employer payments for health and welfare, vacation, pension, travel time, and subsistence pay as provided for in Section 1773.8 of 5-18 the Labor Code of the State of California, apprenticeship or other training programs authorized by Section 3093 of the Labor Code, and similar purposes) applicable to the Work to be done for straight time, overtime, Saturday, Sunday and holiday work is that ascertained by the Director of the Department of Industrial Relations of the State of California and determined by the Town, which said rates are made a part hereof, incorporated herein by reference as though fully set forth. The holiday wage rate listed shall be applicable to all holidays recognized in the collective bargaining agreement of the particular craft, classification or type of worker employed on the Project. EMPLOYMENT OF APPRENTICES B. Attention is directed to the provisions of Section 1777.5 and 1777.6 of the California Labor Code concerning the employment of apprentices by the Contractor or any subcontractor. The Contractor and any subcontractor shall comply with the requirements of Section 1777.5 and 1777.6 in the employment of apprentices. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, ex-officio the Administrator of Apprenticeship Standards and its branch offices. TRAVEL AND SUBSISTENCE C. The Contractor shall make such travel and subsistence payments to each worker needed to execute the Work as are established in the applicable collective bargaining agreements filed in accordance with Section 1773.8 of the California Labor Code. PAYROLL RECORDS D. The Contractor and each subcontractor shall keep an accurate payroll record showing the name, address, social security number, work classification, straight time and overtime hours worked each day and week and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed by the Contractor or subcontractor in connection with the Work. The payroll records shall be kept in accordance with the provisions of Section 1776 of the California Labor Code and Contractor and each subcontractor shall otherwise comply with all requirements of such Section 1776. The contractor shall forfeit as penalty to the Town $25 dollars for each worker employed in the execution of the contract by the contractor or any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day or 40 hours in any one calendar week, in violation of Labor Code Division 2, Part 7, Chapter 1, Article 3. ARTICLE XVII PAYMENTS AND COMPLETION CONTRACT SUM A. The Contract Sum is stated in the Town-Contractor Agreement and, including authorized adjustments thereto, is the total amount payable by The Town to the Contractor for the performance of the Work under the Contract Documents. SCHEDULE OF VALUES 5-19 B. Following the issuance of the Notice to Proceed, the Contractor shall submit to the Town and Engineer a Schedule of Values. The Contractor's Schedule of Values shall be prepared in such form and supported by such data to substantiate its accuracy as the Town and Engineer may require. If the Schedule of Values is not favorably reviewed by the Town and Engineer, a revised Schedule of Values shall be submitted that is mutually acceptable to the Contractor and the Town. Progress Payments shall be made to the Contractor based on the approved Schedule of Values. APPLICATIONS FOR PAYMENT C. The Contractor shall prepare an itemized Application for Payment based upon work completed by the close of the twentieth day of each month and shall submit said Application to the Engineer for his review and approval no later than the twenty-fifth day of each month. The Application for Payment shall be supported by such data substantiating the Contractor's right to payment as the Town may require, and reflecting retainage, if any, as provided elsewhere in the Contract Documents. Items and values of work included in the Application for Payment shall be as detailed as in the Contractor's Schedule of Values. Upon approval of the Application for Payment, the Town will pay ninety percent (90%) of amounts due Contractor on account of progress payments. Retained percentages are for the sole protection and benefit of the Town, and no other person, firm or corporation shall be entitled to receive any part thereof. Sums withheld as retained percentages may be expended by the Town to correct or remedy any of the conditions described in Section E of this Article. Except for amounts applied by the Town to correct or remedy any such conditions, the full contract retainage will be paid to Contractor at the time of final payment. Until the time of final payment, the Town shall remain the legal and beneficial Town of all retained percentages. In lieu of the ten percent (10%) retention, at the request and expense of the Contractor, acceptable securities equivalent to the ten percent (10%) retention may be deposited with the Town, or with a California or federally chartered bank as escrow agent. The Contractor shall be the beneficial Town of any security substituted for the ten percent (10%) retention and shall receive any interest thereon. Any such security shall be returned to the Contractor at the time of final payment. Acceptable security shall include those securities listed in California Government Code § 16430, bank or savings and loan certificates of deposit, interest bearing demand deposit accounts or standby letters of credit. Contractor will not be credited with interest for any portion of the Contract Retainage after it is paid by the Town to correct or remedy any of the conditions described in Subparagraph. At the sole discretion of the Town, when the Work is at least 50 percent complete and if progress is satisfactory, remaining Progress Payments may be paid in full, and any retention held in excess of five percent (5%) of the Contract Amount may be released to Contractor. Under no circumstances shall retention be reduced below five percent (5%) of the Contract Amount until Final Completion and Final Payment as set forth in Section H of this Article. Contractor shall provide Consent of Surety prior to reduction of retainage. Contractor shall apply for reduction in retainage to the Town in writing. The full Contract retainage may be reinstated if the Work and its progress do not remain satisfactory to the Town, or if Surety withholds its consent, or for other good and sufficient reasons. Unless otherwise provided in the Contract Documents, payments will be made on account of fabricated materials or equipment not incorporated in the Work but delivered and suitably stored at the Site and, if approved in advance by the Town, payments may similarly be made for fabricated materials or equipment suitably stored at some other location agreed upon in writing. Payments for fabricated materials or equipment stored on or off the Site shall be conditioned upon submission by the Contractor of bills of sale or such other procedures satisfactory to the Town to establish the Town's title to such fabricated materials or equipment or otherwise protect 5-20 the Town's interest, including applicable insurance and transportation to the Site for those materials and equipment stored off the Site. Applications for payments shall be based upon that portion of the Contract Sum properly allocable to labor, fabricated materials and equipment either incorporated in the Work or suitably stored at the Site, up to five (5) days prior to the date on which the Application for Payment is submitted. Payments for fabricated materials and equipment stored off-site within fifty (50) miles of the Project will be made, subject to the Town's approval, if Contractor provides invoice, lien release, certificate of insurance covering stored materials, and stores material in an approved, bonded Shelter. The Town and the Town's representatives shall have the right of inspection of materials stored off-site. The Contractor warrants that title to all Work, materials and equipment covered by an Application for Payment will pass to the Town either by incorporation in the construction or upon receipt of payment by the Contractor, whichever occurs first, free and clear of all liens, claims, security interests or encumbrances, hereinafter referred to in this Article XVII as "liens"; and that no Work, materials or equipment covered by an Application for Payment will have been acquired by the Contractor, or by any other person performing Work at the Site or furnishing materials and equipment for the Project, subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor or such other person. CERTIFICATES FOR PAYMENT D. The Town will, following the receipt of a properly-prepared Application for Payment, process it for payment. The Town shall notify the Contractor in writing of the reasons for withholding the Application or recommending payment for a lesser amount than set forth in the Application as provided in Section E of this Article. PAYMENTS WITHHELD E. The Town, following consultation with the Engineer, may decline to approve and may withhold the Application for Payment in whole or in part. If the Town determines failure by the Contractor to perform its contractual obligations, the Town will notify the Contractor as provided in Section D of this Article. The Town may also decline to provide payment or, because of subsequently discovered evidence or subsequent observations, the Town may nullify the whole or any part of any Applications for Payment previously issued to such extent as may be necessary to protect the Town from loss because of 1. defective Work not remedied; 2. third party claims filed or reasonable evidence indicating probable filing of such claims; 3. failure of the Contractor to make payments properly to subcontractors, or for labor, materials or equipment; 4. proof that the Work cannot be completed for the unpaid balance of the Contract Sum; 5. damage to the Town or another contractor; 6. proof that the Work cannot be completed within the Contract Time; 7. persistent failure to carry out the Work in accordance with the Contract Documents; 8. failure to submit an original or an updated Project Schedule in accordance with the Contract Documents; When the grounds described in this Section are removed, payment shall be made for amounts withheld because of them. 5-21 TIME OF PAYMENT The Town will make Progress Payments within a time agreed upon prior to signing of Contract, or where no prior agreement is made, within thirty (30) days of receipt of an approved Application for Payment. The Town retains the right to make partial payments or reduced payment during the period of any dispute and Contractor shall be obligated to continue all Work. SUBSTANTIAL COMPLETION G. When the Contractor considers that the Work, or a designated portion thereof which is acceptable to the Town, is substantially complete as defined in Article )GI, Section A, the Contractor shall prepare for the Town and Engineer a list of items to be completed or corrected. The failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. When the Town and Engineer determine that the Work or designated portion thereof is substantially complete, a punchlist of items to be completed will be prepared pursuant to the Contract Documents. The Town and Engineer will then prepare a Certificate of Substantial Completion of the Work which shall establish the Date of Substantial Completion of the Work, shall state the responsibilities of the Town and the Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall complete the items listed therein. The Certificate of Substantial Completion of the Work shall be submitted to the Contractor for his written acceptance of the responsibilities assigned to them in such Certificate. Nothing in this section shall be construed as relieving the Contractor from liability for defects due to faulty construction or from its responsibility to correct defective work or materials. Upon Substantial Completion of the Work or designated portion thereof, and upon application by the Contractor, the of the Town at his/her sole discretion shall have the authority to reduce the Contractor's retention balance down to no less than five percent (5%) of the contract sum. Warranties required by the Contract Documents shall commence on the date of final acceptance by the Town or from the Date of Substantial Completion of the Work or designated portion thereof, whichever is earlier, unless otherwise provided in the Certificate of Substantial Completion of the Work or designated portion thereof. Contractor shall obtain any manufacturer's extended warranties as are necessary to comply with this requirement. FINAL COMPLETION AND FINAL PAYMENT H. Following the Town's issuance of the Certificate of Substantial Completion of the Work or designated portion thereof, and the Contractor's completion or correction of the Work in accordance with the requirements of the Certificate of Substantial Completion, the Contractor shall forward to the Town a written notice that the Work is ready for final inspection and acceptance, and shall also forward to the Town a final Application for Payment. Upon receipt, the Town will make the necessary evaluations and will promptly make such inspection. When the Town finds the Work acceptable under the Contract Documents and the Contract fully performed, the Town will issue a Certificate for Payment. All prior partial estimates and payments shall be subject to correction on the final estimate and payment. No payment shall be construed to be an approval or acceptance of any defect in work or improper materials. Neither the final payment nor the remaining retainage shall become due until the Contractor submits to the Town, (1) an affidavit that all payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Town or the Town's property might in any way be responsible, have been paid or otherwise satisfied, (2) consent of surety, if any, to final payment, and (3) if required by the Town, other data establishing payment or satisfaction of all such obligations, such as receipts, releases and waivers of liens arising out of the Contract, to the extent and in such form as may be designated by the Town. If any subcontractor refuses to 5-22 furnish a release or waiver required by the Town, the Contractor may furnish a bond satisfactory to the Town to indemnify the Town against any such lien. If any such lien remains unsatisfied after all payments are made, the Contractor shall refund to the Town all monies that the latter may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Except for those claims previously made by the Contractor in writing and identified by the Contractor as unsettled at the time of final Application for Payment, acceptance by the Contractor of final payment shall be and shall operate as a complete release to the Town, its successors, assigns, officers and employees and the Engineer of and from any and all other claims, demands, causes of action, obligations, damages or liabilities, whether or not known or suspected, which Contractor ever had or claims to have had as of or prior to the acceptance of final payment arising directly or indirectly out of, or in any way connected with any of the transactions, series of transactions or matters in connection with the Work and every act and neglect of the Town, its officers, employees, successors, assigns, and the Engineer relating to or arising out of the Work. No payment, however, final or otherwise, shall operate to release the Contractor or his sureties from any obligations under this contract for the Contractor's bond for faithful performance and Contractor's payment bond. All provisions of this Agreement, including without limitation those establishing obligations and procedures, shall remain in full force and effect notwithstanding the making or acceptance of final payment prior to the Date of Substantial Completion of the Work. Final payment shall be made to Contractor no earlier than thirty-five (35) days after acceptance of the Work by the Town, which acceptance shall be evidenced by the recordation of a Notice of Completion of the Work in the Office of the County Recorder. However, the Town may accept Completion of the Contract and have the Notice of Completion recorded when the entire work shall have been completed to the satisfaction of the Town, except for minor corrective items, as distinguished from incomplete items. If the Contractor fails to correct all such items prior to the expiration of the thirty-five day period, immediately following acceptance of completion, the Town shall withhold from the final payment an amount equal to twice the estimated cost of correction of all such items until the last of the items have been corrected. At the end of the thirty-five (35) day period, if there are items remaining to be corrected, the Town may request the Contractor in writing to make immediate correction of said items; and if the Contractor fails to make such correction within ten (10) days of the date of the written notice, the Town may make the correction and deduct the costs from the amount withheld therefor. DELAYS The Date for Substantial Completion of the Work shall not be extended except in accordance with the provisions of the Town-Contractor Agreement ("Extension of Scheduled Completion Date"). In the event that a suspension of the Work is ordered by the Town due to failure on the part of the Contractor to perform any provisions of the Contract, the days on which the suspension of the Work is in effect shall be considered calendar days and the dates set forth in the Town-Contractor Agreement shall not be extended and the Contractor shall not be relieved of any claim for liquidated damages, engineering or inspection charges or any other charges which the Town may have. If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the critical path of the Contractor's schedule for construction. Claim for delay may only be made if the delay adversely affects the critical path of the Contractor's schedule and adversely affects a portion of the Work that must be completed as 5-23 scheduled to avoid delay to the final completion of the Work as a whole by the Scheduled Completion Date. ARTICLE XVIII CORRECTION OF WORK BEFORE FINAL PAYMENT The Contractor shall promptly remove from the Site and building, if a building is involved, all work condemned by the Engineer as failing to conform to the contract, whether incorporated or not, and the Contractor shall promptly replace and re-execute his own work in accordance with the contract and without expense to the Town, and shall bear the expense of making good all work of other contractors destroyed or damaged by such removal or replacement. If the Contractor does not remove such condemned work within a reasonable time, fixed by written notice of the Engineer, the Town may remove it and may store the material at the expense of the Contractor. If the Contractor does not pay the expenses of such removal and storage within ten days' time thereafter, the Town may, upon ten days' written notice to the Contractor, sell such materials at auction or at private sale and shall account for the net proceeds thereof, after deducting all costs and expenses that should have been borne by Contractor. ARTICLE XIX CORRECTION OF WORK AFTER FINAL PAYMENT The Contractor shall remedy any defects due to faulty material or workmanship and pay for any damage to other work resulting therefrom, which shall appear within a period of one year from date of final payment. Said corrective work to be in accordance with the terms of the Contract Documents and any special guarantees provided therein. Neither the foregoing nor any provision in the Contract Documents nor any special guarantee time limit, shall be held to limit the Contractor's liability for defects, to less than the legal limit of liability in accordance with law. Town shall give notice of observed defects within a reasonable time. All questions arising under this Article shall be determined by the Engineer, whose decision shall be final and conclusive in absence of fraud. ARTICLE XX TOWN'S RIGHT TO DO WORK If the Contractor should neglect to prosecute the Work properly or fail to perform any provisions of this contract, the Town, after three days' written notice through the Engineer to the Contractor, may without prejudice to any other remedy it may have, make good such deficiencies and corrections and may deduct the cost thereof from the payment then or thereafter due to the Contractor, provided, however, that the Engineer shall approve both the action and the amount charged to the Contractor. ARTICLE XXI TOWN'S RIGHT TO STOP THE WORK If the Contractor fails to correct defective Work, or fails to carry out the Work in accordance with the Contract Documents, the Town, by a written order signed personally or by an agent specifically so empowered by the Town in writing, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the Town to stop the Work shall not give rise to any duty on the part of the Town to exercise this 5-24 right for the benefit of the Contractor or any other person or entity. ARTICLE XXII TOWN'S RIGHTS AND DUTIES If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, and fails within seven (7) days after receipt of written notice from the Town to commence and continue correction of such default or neglect with diligence and promptness, the Town may, and without prejudice to any other remedy the Town may have, make good such deficiencies. In such case an appropriate Change Order shall be issued deducting from the payments then or thereafter due the Contractor any and all costs of correcting such deficiencies, including but not limited to, compensation for the Engineer's additional services made necessary by such default, neglect or failure. Such action by the Town and the amount charged to the Contractor shall be based on the consultation with the Engineer, if necessary. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Town. ARTICLE XXIII TOWN'S RIGHT TO TERMINATE CONTRACT If the Contractor shall be adjudged a bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, or if he should persistently or repeatedly refuse or should fail to supply enough properly skilled workmen or materials, or if he should fail to make prompt payment to subcontractors or for material or labor, or persistently disregard laws, statutes, ordinances and regulations of other authorities or the instructions of the Engineer, or otherwise be guilty of a substantial violation of any provision of this contract, then the Town, upon certificate of the Engineer that sufficient cause exists to justify such action, may without prejudice to any other right or remedy and after giving the Contractor, his surety, seven days' written notice, terminate the employment of the Contractor and take possession of the project and of all materials, tools and appliances thereon, and finish the Work by whatever method it may deem expedient. In such case, the Contractor shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the contract price shall exceed the expense of finishing the Work, including compensation for additional engineering, managerial and administrative services, such excess shall be paid to the Contractor. If such expense shall exceed such unpaid balance, then the Contractor shall pay to the Town the difference. The expense incurred by the Town as herein provided and the damage incurred through the Contractor's default, shall be certified by the Engineer. ARTICLE XXIV CONTRACTOR'S RIGHT TO STOP WORK AND TERMINATE CONTRACT If the Work should be stopped under an order of any court, or other public authority, for a period of ninety days, through no act or fault of the Contractor or of anyone employed by him, then the Contractor may, upon seven days' written notice to the Town and Engineer, terminate this contract and recover from the Town payment for all work executed, which payment shall be based on the reasonable value of labor and materials thereof or unit prices, if so provided in the contract, plus a sum equal to 15% thereof for profit, overhead, and damages to Contractor resulting from such termination. ARTICLE XXV 5-25 ASSIGNMENT Neither the contract nor any part thereof nor any moneys due or to become due thereunder may be assigned by the Contractor without the prior written approval of the Town. ARTICLE XXVI SUBCONTRACTS No part of this contract may be sublet by the Contractor without prior written notification in advance and approval by the Engineer. ARTICLE XXVII SEPARATE CONTRACTS The Town reserves the right to let other contracts in connection with this work. The Contractor shall afford other contractors reasonable opportunities for the introduction and storage of their materials and the execution of their work and shall properly connect and coordinate his work with said other contractors. If any part of the Contractor's work depends for proper execution upon the Work of any other contractor, the Contractor shall inspect and promptly report to the Engineer any defects in such work that render it unsuitable for such proper execution and results. Contractor's failure so to inspect and report shall constitute an acceptance of the other contractor's work as fit and proper for the reception of his work, except as to any defects which may develop in the other contractor's work after execution of his work. ARTICLE XXVIII ATTORNEYS' FEES In case suit shall be brought by Town on said contract for breach thereof by Contractor, Contractor shall pay to Town reasonable attorneys' fees to be fixed by the Court. ARTICLE XXIX SUBCONTRACTORS AWARDS OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK Contractor shall have submitted with Contractor's Bid Proposal a list of all subcontractors whose work represents an amount in excess of one-half of one percent (0.5%) of the Contract Sum, setting forth the name and location of the place of business of each such subcontractor and the portion of work (including the dollar amount) which will be done by each such subcontractor in the manner required by Section 4104 of the California Subletting and Subcontracting Fair Practices Act, Cal. Pub. Contr. Code 4104 - 4114.1. Before starting work under the Contract, a subcontractor must have been included in the list of subcontractors submitted by the Contractor with the Bid Proposal. The Contractor shall not substitute any subcontractor in place of the subcontractors designated in such list except as approved by the Town and as permitted by the Subletting and Subcontracting Fair Practices Act. Contractor shall not subcontract any portion of the Work in excess of one half of one percent (0.5%) of the Contract Sum for which no subcontractor was listed in the bid, or permit any subcontract to be assigned, transferred, or performed by anyone other than the designated subcontractor except as approved by the Town 5-26 and as permitted by the Subletting and Subcontracting Fair Practices Act. Within ten (10) days after award of the Contract, Contractor shall submit for the Town's approval a list of all subcontractors whose work represents less than one half of one percent (0.5%) of the Contract Sum. SUBCONTRACTUAL RELATIONS By an appropriate agreement, written where legally required for validity, the Contractor shall require each subcontractor, to the extent of the Work to be performed by the subcontractor, to be bound to the Contractor by the terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, assumes toward the Town and the Engineer. Said agreement shall preserve and protect the rights of the Town and the Engineer under the Contract Documents with respect to the Work to be performed by the subcontractor so that the subcontracting thereof will not prejudice such rights, and shall allow to the subcontractor, unless specifically provided otherwise in the Contractor-Subcontractor Agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by these Documents, has against the Town. Where appropriate, the Contractor shall require each subcontractor to enter into similar agreements with their sub-subcontractors. The Contractor shall make available to each proposed subcontractor, prior to the execution of the subcontract, copies of the Contract Documents to which the subcontractor will be bound by this article, and identify to the subcontractor any terms and conditions of the proposed subcontract which may be at variance with the Contract Documents. Each subcontractor shall similarly make copies of such Documents available to their sub-subcontractors. The Contractor shall be fully responsible for the acts and omissions of his subcontractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by the Contractor. When a portion of the Work subcontracted by the Contractor is not being performed in a manner satisfactory to the Town, the Town shall notify the Contractor and shall inform him of the deficiencies in the sub-contractor's execution of the Work. If the subcontractor fails to correct such deficiencies within ten (10) days after Contractor's receipt of notification from the Town, the Contractor shall cause the subcontractor to be removed immediately from the Work. Contractor agrees to bind in writing all subcontractors and materials suppliers to the terms of the General Conditions of the Contract for Construction and to the terms of the entire agreement between the Town and Contractor. ARTICLE XXX CUTTING AND PATCHING Each Contractor shall leave all chases, holes or openings straight through in a proper size in his own work or cut same in existing work as may be necessary for the proper installation of his own or other contractor's work, consulting with the Engineer and the contractors concerned, regarding proper location and size of the same. In case of his failure to leave or cut the same in the proper place, he shall cut them afterwards at his own expense. No excessive cuttings will be permitted not shall any piers, beams or structural members be cut without the consent of the Engineer. The Contractor shall not endanger any work by cutting, excavating or otherwise altering the Work and shall not cut or alter the Work of any other contractor save with the consent of the Engineer. ARTICLE XXXI 5-27 CLEANING UP The Contractor shall at all times keep the premises and site free from accumulation of waste materials or rubbish caused by his employees or work, and at the completion of the Work shall remove all rubbish from and about the building, and all tools, scaffolding and surplus materials, and shall leave his work "broom clean" or its equivalent, unless more exactly specified. ARTICLE XXXII UNDERGROUND OBSTRUCTIONS A. With respect to all utility facilities indicated in the plans and specifications: The Contractor shall notify all utility companies and require field location markings of facilities prior to commencing construction. Where potential conflict with underground utilities may constitute a safety hazard or interfere with the progress of work, such facilities shall be hand- excavated to determine their precise location. Contractor shall be liable for damage to all utilities whether so located and marked or not. It is not the intent of the Plans to show the exact location of existing underground utilities or structures, and the Engineer assumes no responsibility therefore. It is the Contractor's responsibility to verify all utility locations and sizes and notify the Engineer in case of conflict. B. Except as otherwise provided by these General Conditions, the Town assumes the responsibility for the timely removal, relocation or protection of existing main or trunkline utility facilities located on the site that are not identified in the plans and specifications. The Town will compensate the contractor for the costs of locating, repairing damage not due to the failure of the contractor to exercise reasonable care, and removing or relocation such utility facilities not indicated in the Plans and Specifications and for equipment on the project necessarily idled during such work. Contractor shall not be assessed liquidated damages for delay in completion of the project when such delay was caused by the failure of the Town or the Town of the utility to provide for removal or relocation of such utility facilities. ARTICLE III AGREEMENT TO ASSIGN ANTITRUST CLAIMS In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the Contractor or subcontractor offers and agrees to assign to the Town all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 USC Sec. 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 the Town tenders final payment to the Contractor, without further acknowledgment by the parties. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 USC Sec. 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, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effective at the time the purchasing body tenders final payment to the bidder. 5-28 ARTICLE XXXIV RESOLUTION OF CLAIMS AND DISPUTES A. DECISION OF PROJECT MANAGER Claims, including those alleging an error or omission by the Design Engineer, shall be referred initially to the Project Manager for decision. An initial decision by the Project Manager shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Town arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Project Manager with no decision having been rendered by the Project Manager. The Project Manager will not decide disputes between the Contractor and persons or entities other than the Town. 2. The Project Manager will review Claims and within ten days of the receipt of the Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Project Manager is unable to resolve the Claim if the Project Manager lacks sufficient information to evaluate the merits of the Claim, or if the Project Manager concludes that, in the Project Manager's sole discretion, it would be inappropriate for the Project Manager to resolve the Claim. 3. In evaluating Claims, the Project Manager may, but shall not be obligated to, consult with or seek information from either party or from persons with special knowledge or expertise who may assist the Project Manager in rendering a decision. The Project Manager may request the Town to authorize retention of such persons at the Town's expense. 4. If the Project Manager requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise the Project Manager when the response or supporting data will be furnished or advise the Project Manager that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Project Manager will either reject or approve the Claim in whole or in part. 5. The Project Manager will approve or reject Claims by written decision, which shall state the reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Project Manager shall be final and binding on the parties but subject to mediation and arbitration. 6. When a written decision of the Project Manager states that (1) the decision is final but subject to medication and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the final written decision, then failure to demand arbitration within said 30 days' period shall result in the Project Manager's decision becoming final and binding upon the Town and the Contractor. If the Project Manager renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. Upon receipt of a Claim against the Contractor or at any time thereafter, the Project Manager or the Town may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the Project Manager or the Town may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. If a Claim relates to or is the subject of a stop notice, the party asserting such Claim may proceed in accordance with applicable law to comply with the stop notice or filing deadlines prior to resolution of the Claim by the Project Manager, by mediation or by arbitration. 5-29 B. MEDIATION Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect shall, after initial decision by the Project Manager or 30 days after submission of the Claim to the Project Manager, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 3. The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. C. ARBITRATION 1. Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect shall, after decision by the Project Manager or 30 days after submission of the Claim to the Project Manager, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provision of Paragraph B of this Article. 2. Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Project Manager. 3. A demand for arbitration shall be made within the time limits specified in Subparagraphs A.6 and C.1 of this Article as applicable, and in other cases within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations. 4. Limitation on Consolidation or Joinder. No Arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner the Architect, Architect's employees or consultants, except by written consent containing specific reference to the Contract and signed by the Architect, Town, Contractor and any other person or entity sought to be joined. No Arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner the Project Manager, except by written consent containing specific reference to the Contract and signed by the Project Manager, Town, Contractor and any other person or entity sought to be joined. No arbitration shall include, by consolidation or joinder or in any other manner, parties other than the Town, Contractor, a separate contractor and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. No person or entity other than the Town, Contractor or a separate contractor shall be included as an original third party or additional third party to an arbitration whose interest or responsibility is insubstantial. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of a Claim not described therein or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Contract shall be specifically enforceable under applicable law in any court having jurisdiction thereof. 5-30 Claims and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. Judgment on Final Award. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. END OF GENERAL CONDITIONS 5-31 Town of Tiburon State of California SECTION 6 SPECIAL PROVISIONS 1. GENERAL A. FEDERAL REQUIREMENTS The Contractor shall furnish various Federal reports in accordance with the following: During the course of the contract, in compliance with the Davis-Bacon Act, the Contractor and all Subcontractors shall submit weekly payroll records containing the following: 1. - A property completed payroll certification on forms supplied by County, or Federal Forms ED-110 or WHO-347, including name, address, correct classification, rate of pay, daily and weekly number of hours worked, deductions made, and actual wages paid for all employees; 2. A weekly Statement of Compliance Form ED-162, properly completed; and A Certification of Prime Contractor as found on the reverse side of Form ED-110 and WHIG-347, or separate County form, properly executed. MINIMUM WAGE RATES Minimum wage rates for this project shall be in accordance with the following: If there is a difference between the minimum wage rates predetermined by the Secretary of Labor and the prevailing wage rates determined by the State of California for similar classification of labor, the contractor and his Subcontractors shall pay not less than the higher wage rate. Wage and equipment rental rates as determined by the State of California are listed in the Department of Transportation publications entitled "General Prevailing Wage Rates," issued monthly, and "Labor Surcharges and Equipment Rental Rates," issued semi-monthly. B. MISCELLANEOUS The Contractor shall take all reasonable precautions to restrict his operations to the least area of work possible and shall not disturb property beyond the areas of work. 6-1 The Contractor shall obtain the approval of the Engineer prior to the use of any area within the road right of way for storage purposes .as approved by the Engineer. The Contractor shall be responsible for the layout and general survey of this project. After original layout by the Contractor, :the Engineer shall review the site to note possible field changes. The cost for all layout and survey work borne by the Contractor shall be considered as part of the various bid items and naseparate payment will be made. 2. ORDER OF WORK AND PROGRESS SCHEDULE Attention is directed to Section 5-1.05, "Order of Work," of the State of California Business, Transportation and Housing Agency, Department of Transportation; July, 1092"tStandard Specifications') and the following Special Provisions. The First order of work shall be the installation of the advance notice.construction signs in accordance with~'Section 4" "Signs & "Traffic Control"'of these special provisions: The Contractor shall prepare and submit a progress schedule in accordance with Section 8-1.04 , "Progress Schedule" oft S` tandard Specifications and ina rm provided by or acceptable to the Engineer. The Contractor shall'also provide a list of mater ials~(icati ig-the names and addresses , of suppliers) to be used on the project and -his method of Handling traffic Full compensation for supplying the "Progress Schedule" and all required updates shall" be considered as incluced'inlthe contractpr`paid for the various bid items and no `separate payment will be made.} 3. EXISTING"'ACILT'IESlCOOPERATIflT 'Attention is directed to Section 8-1.10, "Utility and Non-I-lighwa Facilities;" of the Standard Specifications and these Special Provisions. The Contractor shall be responsible for the coordination and cooperation` with `all utilities." h is not tUe intent of the plans to'show the exact location'of existing 4 relocated utilities, and the Eiiguieer assumes no responsibility therefor:` whenever any su' h' ui lities "are mdicteci thereon, the deeper than eight inches is contemplated by the Contractor, he' shall riotil~ Underground Service - Alert at (800) ,642-2444 prior to excavation. E sting signs removed during construction "shall `l a reinstalled- by the contractor. it is not the intent of the plans to. sh - - the exact of of xistmg re orated ut litres or Stt~uctu es, and the Town assumes no responsibility therefor. Whenever any such utilities are indicated thereon; the Contractor shall be responsible for verifying their actual`-location and depth in the field. The Contractor shall notify Underground Service Alert at 8,00-642-2444, five (5) days in advance of comniencingropera tions r. ,¢-2 The Contractor shall cooperate with the respective utility agencies per Section 7-1.14 of the Standard Specifications and shall notify any pertinent utility entities five (5) days in advance of commencing operations. The Contractor shall be responsible for any damage to utilities or structure (existing or new) resulting from his operations. Full compensation for complying with the above provisions shall be considered as included in the contract price for the various bid items and no separate payment will be made. 4. SIGNS & TRAFFIC CONTROL Attention is directed to Sections 7-1.08, "Public Convenience," 7-1.09, "Public Safety" and Section 121 "Construction Area Traffic Control Devices" of the Standard Specifications, insofar as they may apply, and the following Special Provisions. The provisions of Section 7-1.08, 7.109 and 12 regarding signs and other traffic control devices are hereby revised to provide that all signs and other warning devices (including construction and warning signs placed beyond the limit of work), shall be provided by the Contractor, and shall remain his property after the completion of the contract. The applicable sections of Section 7.108 and Section 12.2 (Flagging) are further revised to provide that all flaggers shall be provided by the Contractor at his expense. Flaggers shall be property equipped and trained in accordance with "Instruction to Flaggers" published by the Department of Transportation. Any temporary striping, signs, delineation and/or markers determined to be necessary by the Engineer shall be provided by the Contractor by the end of the working shift at his expense. The Contractor shall refer to the current "Manual of Traffic Controls for Construction and Maintenance of Work Zones," and the "Uniform Signs Chart," issued by the California Department of Transportation, and shall furnish, erect, maintain and remove all necessary signs and devices during the length of this contract. The Contractor shall relocate existing signing to temporary or permanent locations as directed by the Engineer. Signs that are not in use shall be covered by the Contractor. The Contractor shall install appropriate construction warning signs as approved by the Engineer approximately 1/4 mile in each direction in advance of work sites. Such warning signs may included, but not necessarily be limited to, a C 16 and C23 for each work zone. The approximate location of such signs shall be determined by the Engineer. In particular, the Contractor shall provide suitable advance advisory signs in the approach direction to each work site, subject to the approval of the Engineer, to advise approaching motorists of any delays due to ongoing operations. When work is not in progress and/or work operations do not pose any delays to local motorists, then such advisory signs shall be removed or adequately covered by the Contractor. 6-3 Unless otherwise permitted by the Engineer, the Contractor shall conduct his operations such that work will be completed to a point that normal traffic patterns will be available during nonworking hours. Flaggers shall be provided during working hours when the road is open to single-lane traffic only unless noted otherwise herein. Where flaggers are not visible to each other they shall be either equipped with two-way radios for communication, or the Contractor shall furnish a properly equipped and signed pilot car and driver to pilot traffic through the project area. When traffic is being handled by one-lane/two-way control, traffic shall not be delayed for more than 10 minutes. No plates nor plywood shall be used during non-working hours nor at any site if active constructions is not in progress. At the end of each day's work, and at other times when construction operations are suspended, all equipment and other obstructions shall be removed from that portion of the roadway open for use by local traffic and pedestrians. PAYMENT The lump sum price paid for signs and traffic control shall include furnishing all labor (including flaggers when necessary), materials and equipment (including any temporary or permanent signs, markers, and plates) necessary to provide for the convenience and safety of the public. 5. DEMOLISH AND REMOVE EXISTING PIER WALKWAY The existing pier walkway shall be removed and demolished to the limits shown on the plan. All material removed shall become the property of the contractor and shall be removed from the jobsite. Timber members deemed acceptable for reuse by the engineer may be stored by the contractor and reused. The contractor shall pay close attention to not allowing any removed material to fall into the bay. All nails and connections of existing material shall be removed as noted on the plan. The contractor shall pay close attention to not damage the existing piers that are to remain on site. Any damaged areas will be the responsibility of the contractor to repair to the satisfaction of the engineer. PAYMENT The lump sum price paid for demolishing and removing the existing pier as noted on the plan shall include furnishing all labor, materials and equipment (including hauling, dumping, and all incidentals) necessary to complete the work. 6-4 6. EXCAVATIONS Earthwork shall conform to the applicable provisions of Section 19, "Earthwork" of the Standard Specifications and these Special Provisions. Earthwork shall include excavation associated with retaining walls and support structure excavation and other earthwork as necessary to complete the work described in these Special Provisions. Excavated material shall become the property of the Contractor and shall be disposed of outside the right of way. Subject to the approval of the Town Engineer, suitable excavated material such as rock rip-rap may be reused where necessary. Edges of excavation in existing roadway pavement shall be saw cut. The Contractor shall notify the Engineer immediately after identifying a grade conflict. The Contractor shall not be eligible for additional compensation for minor design changes other than those that cause a change in quantities. In the event of a grade conflict, the Contractor shall pursue other work which is not affected by the conflict. If such alternative work is available, the Contractor shall not be eligible for additional compensation due to the grade conflict. It is expected that much, or all, of the excavation for the retaining wall and structural support will be within hard material. Just prior to beginning excavation and following the removal of the Rock Rip-Rap slope protection the Contractor shall contract the Town Engineer for a field review. If warranted, the Town Engineer may change the elevation of the footings for the concrete retaining structures to better fit the field conditions. This change in the quantities shall not constitute a change in the character of work. MEASUREMENT Quantities for excavation will each be measured by the cubic yard based on quantities determined from the limits shown on the plans. PAYMENT The price paid per cubic yard for excavation shall be for the quantity stated in the Engineer's Estimate and no additional payment will be made unless the dimensions as shown on the plans are changed by the Engineer. This final quantity for excavation shall include all labor, materials and equipment necessary to complete the work (including excavation for piles) as shown on the plans and specified herein. 7. STRUCTURAL CONCRETE Structural concrete shall conform to the applicable provisions of Section 51, "Concrete Structures" and Section 90, "Portland Cement Concrete" of the Standard Specifications and these Special 6-5 Provisions. Concrete shall include constructing the concrete retaining walls and support structures and the additional concrete work around Elephant Rock. All Reinforcement shall comply with Section 52, "Reinforcement," of the Standard Specifications and unless otherwise noted on the plan shall have a yield strength of 60,000 psi and shall be epoxy coated as noted on the plan. Where splicing is necessary, reinforcing bars shall be spliced in accordance with the provisions of Section 52-1.08, "Splicing," of the Standard Specifications unless otherwise noted on the plan. Concrete structures consisting of retaining walls, and concrete support structures, including reinforced concrete footing and a reinforced concrete stem, shall be constructed of Class "B" concrete, containing a minimum five (5) sacks of Portland cement per cubic yard, and shall have a 28-day compressive strength of at least 3,250 psi. All exposed faces of retaining walls shall be formed and shall be poured with the use of form liners. Concrete shall be color tinting added with lamp black. Concrete retaining walls shall be constructed with a forming system which does not leave holes requiring patching. Concrete placed around Elephant Rock may have a smaller aggregate size as necessary to construct and shall achieve the same strength as noted above. All faces of the remaining structure that face the Bay shall have Architectural Treatment. The basic treatment shall be a spit face treatment; however, the Contractor is encouraged to provide his/her own Architectural Treatment. The Contractor is to submit for approval an example of proposed finishes to the Town Engineer prior to beginning concrete work. Concrete placement shall not occur until the submitted treatment has been approved by the Town Engineer. Dewatering shall be done as necessary to remove water from the concrete retaining wall form and excavated areas. The elevations of the retaining wall and support structure footings may be changed by the Town Engineer depending on the site characteristics. Drilling and bonding of dowels into Elephant Rock and other areas as noted on the plan shall be considered part of the cubic yard cost for structural concrete. MEASUREMENT The quantity for structural concrete will be measured by the cubic yard based on the quantities determined from the limits shown on the plans. PAYMENT The price paid per cubic yard for structural concrete shall be for the quantity stated in the Engineer's Estimate and no additional payment will be made unless the dimensions as shown on the plans are 6-6 changed by the Engineer. This final pay quantity for structural concrete shall include all labor, materials and equipment necessary to complete the work (including labor, materials, forming, reinforcement, concrete, additives, architectural treatments, and all incidentals) as shown on the plans and specified herein. Section 4-1.03B regarding increases or decreases in the quantities of more than 25% shall not apply to this final pay quantity. 8. MINOR CONCRETE (MINOR STRUCTURES) Minor structures shall conform to the provisions of Section 51-1.02 and 90-10 of the Standard Specifications and these Special Provisions. Minor concrete structures shall be constructed of minor concrete, Class "B", and shall contain a minimum of five (5) sack of Portland cement per cubic yard, and shall have a 28-day compressive strength of at least 3,000 psi. The aggregate grading shall be the local standard V max. Plant mix as approved by the Town Engineer. Minor concrete shall include replacing portions of the existing sidewalk and curb and gutter necessary to construct the concrete walkway as shown on the plan and described herein. The installation of the permanent sign and all incidentals related to the permanent sign shall be considered as part of minor concrete. MEASUREMENT The quantity for minor concrete will be measured by the cubic yard based on the quantities determined from the limits shown on the plans. PAYMENT (MINOR STRUCTURES) The price paid per cubic yard for minor concrete shall be for the quantity stated in the Engineer's Estimate and no additional payment will be made unless the dimensions as shown on the plans are changed by the Engineer. This final pay quantity for structural concrete shall include all labor, materials and equipment necessary to complete the work (including labor, materials, forming, reinforcement, concrete, additives, architectural treatments, and all incidentals) as shown on the plans and specified herein. Section 4-1.03B regarding increases or decreases in the quantities of more than 25% shall not apply to this final pay quantity. 9. PERVIOUS BACKFILL (PEA GRAVEL) Pervious backfill shall conform to Section 19-3.065 of the Standard Specifications and shall be placed behind the new retaining walls as shown on the plan and per the Town Engineer's directives. Pea gravel shall have a maximum size of 3/8" in diameter. 6-7 MEASUREMENT Qualities for pea gravel will be measured by the certified weight tickets delivered to the Town Engineer for the amount of material placed. PAYMENT The price paid per ton shall include but not be limited to purchase, delivery, and placement of pea gravel per the plans and these specifications herein. 10. PURL ASE: AND -INSTALL IIMBMA~~MEL WALKWAY All work performed shall be in conformance with the latest version of the Uniform Building Code. X11 timber dec~an`g and support fr~ng shad be N arise rar a Press a Ti Douglas E 1: Timber material deemed acceptable by the Town Engineer may be utilized for the new structure railings but not for support members. The Contractor is to pay close attention to not allowing sawdust or construction debris to fall into the Bay. All steel members shall be A36 Steel unless noted otherwise on the plans. Welding of steel members may be performed on site as long as adequate safety precautions are maintained. All steel members shall be painted with rust proof coating acceptable to the Town Engineer or as noted on the plan. The welded wire mesh used on the walkway shall be galvanized or epoxy coated acceptable to the Town Engineer. Prior to installing the new walkway, the Contractor is to examine the existing pier support structure to verify its conditions. Based on the Town Engineers's and Contractor's review of the support structure, the Contractor may proceed with the installation of the new walkway. It will be necessary to modify the members shown on the plan slightly to fit the field conditions. This is especially true for the area around Elephant Rock. The Contractor's lump sum bid for this item shall reflect such field changes and no additional compensation will be made for minor changes. Any damaged material may be rejected by the Town Engineer at any time prior to acceptance by the Town of Tiburon. PAYMENT The lump sum price paid for the installation of the timber and steel walkway shall include, but not be limited to, the purchase and delivery of materials, installation of materials, examination of existing supports, painting, and minor modification of the walkway to fit field conditions and all incidentals necessary to complete the work shown on the plan and noted in these special provisions herein. 6-8 11. PURCHASE AND INSTALL FIBERGLASS DECKING All work performed shall be in conformance with the latest version of the Uniform Building Code. Fiberglass decking shall be "Safegrate; T Bar Series" produced by McNichols Co. or approved equal. The grating color shall be gray, or approved equal. Type MT-3320 shall be used unless noted otherwise by the Engineer. The support structure for the fiberglass grating shall be modified if necessary to accommodate a fit acceptable to the manufacturer. The contractor shall custom order the grating around Elephant Rock as noted on the plan. Any damaged material may be rejected by the Town Engineer at any time prior to acceptance by the Town of Tiburon. PAYMENT The lump sum price paid for the purchase and installation of the fiberglass decking shall include, but not be limited to, the purchase and delivery of materials, installation of materials, and minor modification of the timer and steel supports to fit field conditions as shown on the plan and noted in these Special Provisions herein. 12. ROCK SLOPE PROTECTION Attention is directed to the applicable provisions of Sections 72-1.01 and 72.2 of the Standard Specifications except as modified by these Special Provisions. Rock Slope Protection shall be Light Class as indicated on the plans, and shall be placed in conformance with the requirements for Method "A" placement. No dumping shall be allowed except for (6) six-inch minus material. Small rock material (6) six-inch minus shall be "chinked" between the exterior voids or larger rocks to lock in place. Previously removed Rock Slope Protection may be reused if deemed acceptable by the Town Engineer. Rock Slope Protection limits and grading may be modified by the Town Engineer to meet local field conditions. 6-9 MEASUREMENT Quantity of Rock Slope Protection shall be measured by the ton and shall be determined from the certified weight tickets delivered to and signed by the Town Engineer on site. The Contractor shall supply the Town Engineer with a copy of each certified weight ticket for his records. PAYMENT The price paid per ton for Rock Slope Protection shall include all labor, material, equipment, and all incidentals necessary to perform the work as shown on the plan and noted herein. 13. PURCHASE AND INSTALL METAL RAILING All work performed shall be in conformance with the latest version of the Uniform Building Code. Metal railing to be A36 steel. Welding may be performed on site with appropriate safety measures in place. The steel railing shall be painted with black rust resistant paint or epoxy paint. Pre-manufactured railings will be allowed given the Town Engineer's approval. Any damaged material may be rejected by the Town Engineer at any time prior to acceptance by the Town of Tiburon. MEASUREMENT Metal railing shall be measured by the linear foot measured from support to support in place. PAYMENT The linear foot price paid for the purchase and installation of metal railing shall include, but not be limited to, the purchase and delivery of materials, installation of materials (including welding, grouting, hardware, grouting of the buse plates, painting) and minor modification to fit field conditions as shown on the plan and noted in these special provisions herein. 6-10 i PRAM Fr,P W W W W W W xxx N N a 000 LnOO P C4 Pra aaa 1~ P P \y, h h N h C i g~ ! O I 19 EXr~'~aiG2 ~~G E . „ Z ,,f22 fir. CyaMOruZ 44- ~Qov~,y Fitii3~ ,E2Jl Gam" /tfe' A ~ Wle 1-0~"LlaveA,v 1t/T,5• /D L sue. s~cno~v