Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D DOCUMENT 00520
AGREEMENT
City of Santa Clara Contract No. 2004D
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement
PREAMBLE
This Agreement (Agreement") is made and entered into on this day or August 200 "Effective Date") by and between Daleo, Inc., a California corporation, with its primary business address located at 550 E Luchessa Avenue, Gilroy, CA 95020 ("Contractor"), and the City of Santa Clara California, a chartered California municipal corporation, with its primary business address at 1500 Warburton Avenue, Santa Clara, California 95050 ("City"). City and Contractor may be referred to herein individually as a "Party" or collectively as the "Parties" or the "Parties to this Agreement." The Parties agree as follows:
AGREEMENT PROVISIONS
Article 1. Work
1.1 Contractor shall complete all Work specified in the Contract Documents, in accordance with the Specifications, Drawings, and all other terms and conditions included in the Contract Documents.
Article 2. Agency and Notices to City
2.1 City has designated the City Engineer or his/her designee to act as City's Representatives), who will represent City in performing City's duties and responsibilities and exercising City's rights and authorities in Contract Documents. City may change the individual(s) acting as City's Representatives), or delegate one or more specific functions to one or more specific City's Representatives, including without limitation engineering, architectural, inspection and general administrative functions, at any time with notice and without liability to Contractor. Each City Representative is the beneficiary of all Contractor obligations to City, including without limitation, all releases and indemnities.
2.2 City has designated the City Engineer or his/her designee to act as Project Manager. City may s, responsibilities and duties to Constructior
without liability to Contractor.
2.3 City has designated itself to act as Consulting Engineers. City may change the identity of the Consulting Engineers) at any time with notice and without liability to Contractor.
2.4 All notices or demands to City under the Contract Documents shall be delivered to the City's Representative at 1500 Warburton Avenue, Santa Clara, California 95050, or to such other person(s) and address(es) as City shall provide to Contractor.
Rev. 04/10/17 00520 - 1 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D Article 3. Contract Time and Liquidated Damages
3.1 Contractor shall commence Work at the Site on the date established in Document 00550, Notice to Proceed. The City reserves the right to modify or alter the Commencement Date of the Work due to the need to complete other City provided work at the Site. Contractor shall complete the Work following the schedule provided in each Call Order.
3.2 Liquidated Damages.
City and Contractor recognize that time is of the essence of this Agreement and that City will suffer financial loss in the form of lost revenues, contract administration expenses (including project management and consultants' expenses), delay and loss of public use, if all or any part of the Work is not completed within the time specified in paragraph 3.1 above plus any extensions thereof allowed in accordance with the Contract Documents. Consistent with Article 15 of Document 00700, General Conditions, Contractor and City agree that because of the nature of the Project, it would be impractical or extremely difficult to fix the amount of actual damages incurred by City because of a delay in completion of all or any part of the Work.
Accordingly, City and Contractor agree that as liquidated damages for delay, Contractor shall pay City:
3.2.1$1,500.00 for each Day that expires after the time specified herein for Contractor to achieve Substantial Completion, until the Work reaches Substantial Completion.
3.2.2 $1,500.00 for each Day that expires after the time specified herein for Contractor to achieve Final Completion, until the Work reaches Final Completion.
These measures of liquidated damages shall apply cumulatively and shall be presumed to be, except as provided herein, the damages suffered by City resulting from the delay in completion of the Work.
3.3 Liquidated damages for delay shall only cover administrative, overhead, interest on bonds, and general loss of public use damages suffered by City as a result of delay. Liquidated damages shall not cover the cost of completion of the Work, damages resulting from defective work, lost revenues or costs of substitute tacilities, or damages suffered by others who then seek to recover their damages from City (for example, delay claims of other contractors, subcontractors, tenants, or other third-parties), and defense costs thereof.
Article 4. Total Contract Price
4.1 City shall pay Contractor for the completion of the Work performed under each Call Order subsequently executed by the Parties for work to be performed, plus any change orders iquidated damages for each Call Order. The estimated value of this Agreement is anticipate to average of $150,000.00 to $2,000,000.00 per year.
Rev. 04/10/17 00520 - 2 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
4.2 The Contract Sum is all inclusive and includes all Work; all federal, state, and local taxes on materials and equipment, and labor furnished by Contractor, its subcontractors, subconsultants, architects, engineers, and vendors or otherwise arising out of Contractor's performance of the Work, including any increases in any such taxes during the term of this Agreement; and any duties, fees, and royalties imposed with respect to any materials and equipment, labor or services. The taxes covered hereby include (but are not limited to) occupational, sales, use, excise, unemployment, FICA, and income taxes, customs, duties, and any and all other taxes on any item or service that is part of the Work, whether such taxes are normally included in the price of such item or service or are normally stated separately. Notwithstanding the foregoing, each party shall bear such state or local inventory, real property, personal property or fixtures taxes as may be properly assessed against it by applicable taxing authorities.
Article 5. Contractor's Representations and Warranties
In order to induce City to enter into this Agreement, Contractor makes the following representations and warranties:
5.1 Contractor has visited the Site and has examined thoroughly and understood the nature and extent of the Contract Documents, Work, Site, locality, actual conditions, as-built conditions, and all local conditions and federal, state and local laws and regulations that in any manner may affect cost, progress, performance or furnishing of Work or which relate to any aspect of the design and the means, methods, techniques, sequences or procedures of construction to be employed by Contractor and safety precautions and programs incident thereto.
5.2 Contractor has examined thoroughly and understood all reports of exploration and tests of subsurface conditions, as-built drawings, drawings, product specifications or reports, available for Bidding purposes, of physical conditions, including Underground Facilities, which are identified in Document 00320, Geotechnical Data and Existing Conditions, which may be apparent at the Site, or which may appear in the Drawings and accepts the determination set forth in these documents and Document 00700, General Conditions of the limited extent of the information contained in these documents and materials upon which the Contractor may be entitled to rely. Contractor agrees that except for the information so identified, Contractor does not and shall not rely on any other information contained in these documents, reports and drawings.
5.3 Contractor has conducted or obtained and has understood all such examinations, investigations, explorations, tests, reports and studies (in addition to or to supplement those referred to in Section 5.2 of this Document 00520) that pertain to the subsurface conditions, as- built conditions, Underground Facilities and all other physical conditions at or contiguous to the Site or otherwise that may affect the cost, progress, performance or furnishing of Work, as Contractor considers necessary for the performance or furnishing of Work at the Contract Sum, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents, including specifically the provisions of Document 00700, General Conditions; and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are or will be required by Contractor for such purposes.
5.4 Contractor has correlated its knowledge and the results of all such observations, examinations, investigations, explorations, tests, reports and studies with the terms and conditions of the Contract Documents.
5.5 Contractor has given City prompt written notice of all conflicts, errors, ambiguities, or discrepancies that it has discovered in or among the Contract Documents and as-built drawings and actual conditions and the written resolution thereof through Addenda issued by City is acceptable to Contractor.
Rev. 04/10/17 00520 - 3 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
5.6 Contractor is duly organized, existing and in good standing under applicable state law, and is duly qualified to conduct business in the State of California.
5.7 Contractor has duly authorized the execution, delivery and performance of this Agreement, the other Contract Documents and the Work to be performed herein. The Contract Documents do not violate or create a default under any instrument, agreement, order or decree binding on Contractor.
Article 6. Contract Documents
6.1 Contract Documents, which comprise the entire agreement between the City and Contractor concerning the Work, consist of the following documents, including all changes, Addenda and Modifications thereto:
CONTRACT DOCUMENTS
Division 0 - GENERAL PROVISIONS.
Division 1 - GENERAL REQUIREMENTS.
Division 2 - TECHNICAL PROVISIONS.
Division 3 and above - SPECIAL PROVISIONS.
Plans
6.2 There are no Contract Documents other than those listed above in this Article 6. The information supplied under Document 00320, Geotechnical Data and Existing Conditions, is not part of the Contract Documents. The Contract Documents may only be amended, modified or supplemented as provided in Document 00700, General Conditions.
Article 7. Miscellaneous
7.1 Terms used in this Agreement are defined in Document 00700, General Conditions and Section 00050, References and Definitions, and will have the meaning indicated therein.
7.2 It is understood and agreed that in no instance is any person, signing this Agreement for or on behalt ot City or acting as an employee, agent or representative of City, liable on this Agreement or any of the Contract Documents, or upon any warranty of authority, or otherwise, and it is further understood and agreed that liability of the City is limited and confined to such liability as authorized or imposed by the Contract Documents or applicable law.
7.3 Contractor shall not assign any portion of the Contract Documents, and may subcontract portions of the Contract Documents only in compliance with the Subcontractor Listing Law, California Public Contracting Code §4100 et seq.
7.4 The Contract Sum includes all allowances (if any).
7.5 In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, Contractor or Subcontractor offers and agrees to assign to the awarding body all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. §15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time City tenders final payment to Contractor, without further acknowledgment by the parties.
Rev. 04/10/17 00520 - 4 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
7.6 Copies of the general prevailing rates of per diem wages for each craft, classification, or type of worker needed to execute the Contract, as determined by Director of the State of California Department of Industrial Relations, are deemed included in the Contract Documents, and are on file in the City Clerk's Office, and shall be made available to any interested party on request.
Pursuant to Section 1861 of the Labor Code, Contractor represents that it is aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and Contractor shall comply with such provisions before commencing the performance of the Work of the Contract Documents.
7.7 Should any part, term or provision of this Agreement or any of the Contract Documents, or any document required herein or therein to be executed or delivered, be declared invalid, void or unenforceable, all remaining parts, terms and provisions shall remain in full force and effect and shall in no way be invalidated, impaired or affected thereby. If the provisions of any law causing such invalidity, illegality or unenforceability may be waived, they are hereby waived to the end that this Agreement and the Contract Documents may be deemed valid and binding agreements, enforceable in accordance with their terms to the greatest extent permitted by applicable law. In the event any provision not otherwise included in the Contract Documents is required to be included by any applicable law, that provision is deemed included herein by this reference (or, if such provision is required to be included in any particular portion of the Contract Documents, that provision is deemed included in that portion).
Rev. 04/10/17 00520 - 5 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
7.8 This Agreement and the Contract Documents shall be deemed to have been entered into in the County of Santa Clara, State of California, and governed in all respects by California law (excluding choice of law rules). The exclusive venue for all disputes or litigation hereunder shall be in Santa Clara County. Both parties hereby waive their rights under California Code of Civil Procedure Section 394 to file a motion to transfer any action or proceeding arising out of the Contract Documents to another venue. Contractor accepts the Claims Procedure in Document 00700, Article 12, established under the California Government Code, Title 1, Division 3.6, Part 3, Chapter 5.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day first mentioned above.
CITY OF SANTA CLARA, CALIFORNIA,
a chartered California municipal corporation
Approved as to form:
Dienatesely
A BRIAN DOYLE RAJEEV BATRA
Interim City Attorney City Manager
1500 Warburton Avenue
Attest: Santa Clara, CA 95050
Telephone: 1+(408) 615-2210
Fax: 1+(408) 241-0347
ROD DIRIDON, JR.
City Clerk
"City"
DALEO, INC.
a California Corporation
By:
Signature of Person executing the
Agreement on behalf of Contractor)
David Levisay
(Please Print or Type Name)
Title: President
Local Address: 550 E Luchessa Avenue
Gilroy, CA 95020
elephone: (408) 846-962
Fax: 408) 846-961
"Contractor"
END OF DOCUMENT
Rev. 04/10/17 00520 - 6 Agreement
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D Bond No. 12147866
Premium: Included in Performance Bond
DOCUMENT 00620
CONSTRUCTION LABOR AND MATERIAL PAYMENT BOND
This Construction Labor And Material Payment Bond ("Bond") dated July 26, 2017 is issued in the amount of two hundred and fifty nine thousand, seven hundred and sixty eight dollars and twenty cents ($259,768.20) (the "Penal Sum") which is equal to one hundred percent of the Contract Price, and is entered into by and between the Contractor and the Surety to ensure the payment of claimants under the Construction Contract defined below. This Bond consists of this page and the Bond Terms and Conditions, Paragraphs 1 through 14, attached and incorporated by this reference. The Contractor and Surety are the parties to this Bond, which has been issued for the benefit of the City of Santa Clara, California, a chartered California municipal corporation ("City") in compliance with the terms of the Construction Contract. Any singular reference to the Contractor, Surety, City or other party shall be considered plural where applicable.
The City of Santa Clara Construction Contract to which this Bond applies is:
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement City Contract No.: 2004D
In the Amount of $ Two hundred and fifty nine thousand, seven hundred and sixty eight dollars and twenty cents ($259,768.20) (Referred to as the "Contract Price"). The Contractor and Surety each acknowledge and accept the terms and conditions of this Bond as evidenced by the following signatures of their representatives. The Contractor and Surety each specifically represent that the individual representatives who have signed below are duly authorized to execute this Bond on its behalf. It is the intent of the Parties that this Bond shall become operative on the date first set forth above.
CONTRACTOR AS PRINCIPAL: SURETY:
Name: Daleo, Inc. Name: The Guarantee Company of North America USA Principal Place of Business: Principal Place of Business:
Address: 550 E. Luchessa Avenue Address: 1 Towne Square, Suite 1470 City/State/Zip_ Gilroy, CA 95020 City/State/Zip_Southfield MI 48076 Signature: Signature:_
Name: David Levisay Name: Vincent M. Scolari
Title: President Title: Attorney-In-Fact
(Please Note: Surety signature must be notarized)
(Please Apply Corporate Seal Here) (Please Apply Corporate Seal Here) Approved as to Form:
Date: 8/10|17
Interim City Attorney
Rev. 04/10/17 00620 - 1 Construction Labor and Material Payment Bond Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
BOND TERMS AND CONDITIONS
1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference.
2. With respect to City, this obligation shall be null and void if Contractor:
2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants; and
2.2 Defends, indemnifies and holds harmless City from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contact, provided City has promptly notified Contractor and Surety (at the address set forth on the signature page of this Bond) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to Contractor and Surety, and provided there is no City Default.
3. payment, directly or indirectly through its Subcontractors, for all sums due Claimants. If to Work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Contractor or Subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, with respect to such Work and labor, then Surety shall pay for the same, and also, in case suit is brought upon this Bond, a reasonable attorney's fee, to be fixed by the court.
4. Consistent with the California Civil Code §8000, et seq., Surety shall have no obligation to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements.
5. Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by Surety under this Bond.
6. Amounts due Contractor under the Construction Contract shall be applied first to satisfy claims, if any, under any Construction Performance Bond and second, to satisfy obligations of Contractor and Surety under this Bond.
City shall not be liable for payment of any costs, expenses, or attorney's fees of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond.
8. Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. Surety further hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Construction Contract, or to the Work to be performed therender, or materials or equipment to be furnished thereunder or the Specifications accompanying the same, shall in any way affect its obligations under this Bond, and it does hereby waive any requirement of notice or any such change, extension of time, alteration or addition to the terms of the Construction Contract or to the Work or to the Specifications or any other changes.
Suit against Surety on this Bond may be brought by any Claimant, or its assigns, at any time after the Claimant has furnished the last of the labor or materials, or both, but, per Civil Code Rev. 04/10/17 00620 - 2 Construction Labor and Material Payment Bond Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D §9558, must be commenced before the expiration of six months after the period in which stop notices may be filed as provided in Civil Code §9356.
10. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520 (Agreement). Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as of the date received at the foregoing addresses.
11. This Bond has been furnished to comply with the California Civil Code §§9550, 9554, et seq.
Any provision in this Bond conflicting with said statutory requirements shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirements shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.
12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made.
13. Definitions.
13.1 Claimant: An individual or entity having a direct contract with Contractor or with a Subcontractor of Contractor to furnish labor, materials or equipment for use in the performance of the Contract, as further defined in California Civil Code §9100. intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the Work of Contractor and Contractor's Subcontractors, and all other items for which a stop notice might be asserted. The term Claimant shall also include the Employment Development Department as referred to in Civil Code §9554(b).
13.2 Construction Contract: The agreement between City and Contractor identified on the signature page of this Bond, including all Contract Documents and changes thereto.
13.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract, provided that failure is the cause of the failure of Contractor to pay the Claimants and is sufficient to justify termination of the Construction Contract.
14. Surety shall submit following documents along with this Construction Labor and Material Payment Bond:
14.1 Verification that Surety is admitted to transact surety business the State of California; and
14.2 Saty of Sure Crite of authority tested by the insurance one one of the revoked, cancelled, annulled or suspended.
END OF DOCUMENT
Rev. 04/10/17 00620 - 3 Construction Labor and Material Payment Bond CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
XXXXXXXXX
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of Santa Clara )
On July 26, 2017 before me, __P. K. Simicich, Notary Public Date Here Insert Name and Title of the Officer
personally appeared Vincent M. Scolari
Name(s) of Signers)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
P. K. SIMICICH
Commission # 2124840 WITNESS my hand and official seal.
Notary Public - California
Santa Clara County кои
My Comm. Expires Sep 21, 2019 Signature
Signature of Notary Public
Place Notary Seal Above
- OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
• Corporate Officer - Title(s): • Corporate Officer - Title(s):
• Partner - • Limited • General • Partner - • Limited • General • Individual • Attorney in Fact • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Trustee • Guardian or Conservator • Other: Other:
Signer Is Representing: _ Signer Is Representing:
©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of _ Santa Clara
on July 27, 2017 before me, Lena Keller, Notary Public
Date Here Insert Name and Title of the Officer
David Levisa
personally appeared
Name(s) of Signers)
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
LENA KELLER WITNESS my hand and official seal.
Commission 2111816
Notary Public - California
Santa Clara County Jenn tell
My Comm. Expires May 16, 2019 Signature_
Signature of Notary Public
Place Notary Seal Above
- OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Conscion Laura mat Panent Bund Number of Pages: _ Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: _ Levishy Signer's Name:
#Parine Lime GeneraliT - Corporate Officer - Title(s):
] Partner - 3 Limited • Genera
• Individual • Attorney in Fact • Individual Attorney in Fac = Trustee = Guardian or Conservator • Trustee • Guardian or Conservator 2 Other: • Other:
Signer Is Representing: Talio the Signer Is Representing:
...
©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
COMPANY OF
NORTH AMERICA THE GUARANTEE COMPANY OF NORTH AMERICA USA Southfield, Michigan
POWER OF ATTORNEY
Vincent M. Scolari, Patricia K. Simicich, Felicia R. Gardner, Wendy R. Pastora, David J. Bachan. F. R. Hudson, III, Deborah L. Tablak, Charles M. Griswold, Yesenia Rivera
MeSherry & Hudson
its true and lawful attorneys)-in-fact to execute,
Is tuniy and wil atoms shift i rent, ethe reof, deliver are oray be a lone, re surely or perine al law, sande, us, rigator, contracte The President, or any Vice President, acting with any Secretary or Assistant Secretary, shall have power and authority:
1. To appoint Attorney(s)-in-fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof; and
2. To revoke, at any time, any such Attorney-in-fact and revoke the authority given, except as provided below
3. In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and authority hereby given to the Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the state of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under its bond.
4. In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner - Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation.
Further, this Power of Attorney is signed and sealed by facsimile pursuant to resolution of the Board of Directors of the Company adopted at a meeting duly called and held on the 6th day of December 2011, of which the following is a true excerpt:
RESOLVED that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, contracts of indemnity and other writings obligatory in the nature thereof, and such signature and seal when so used shall have the same force and effect as though manually affixed.
IN WITNESS WHEREOF, THE GUARANTEE COMPANY OF NORTH AMERICA USA has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer, this 23rd day of February, 2012.
THE GUARANTEE COMPANY OF NORTH AMERICA USA
валеристав
STATE OF MICHIGAN Stephen C. Ruschak, VIce President Randall Musselman, Secretary County of Oakland
Cynthia A. Takai IN WITNESS WHEREOF, I have hereunto set my hand at The Guarantee Notary Public, State of Michigan Company of North America USA offices the day and year above written.
County of Oakland
PULLIO My Commission Expires February 27, 2018
Cynthia A. Takai
Aclina in Oakland County
I, Randall Musselman, Secretary of THE GUARANTEE COMPANY OF NORTH AMERICA USA, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney executed by THE GUARANTEE COMPANY OF NORTH AMERICA USA, which is still in full force and effect IN WITNESS WHEREOF, I have thereunto set my hand and attached the seal of said Company this 26th day of July , 2017 Randall Musselman, Secretary
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D Bond No. 12147866
Premium: $6,442.00
DOCUMENT 00610
CONSTRUCTION PERFORMANCE BOND
This Construction Performance Bond ("Bond"), dated July 26, 2017 , is issued in the amount of two hundred and fifty nine thousand, seven hundred and sixty eight dollars and twenty cents ($259,768.20) (the "Penal Sum") which is equal to one hundred percent of the Contract Price, and is entered into by and between the Contractor and the Surety to ensure the faithtul performance of the Construction Contract defined below. This Bond consists of this page and the Bond Terms and Conditions, Paragraphs 1 through 13, attached and incorporated by this reference. The Contractor and Surety are the parties to this Bond, which has been issued for the benefit of the City of Santa Clara, California, a chartered California municipal corporation ("City") and in compliance with the terms of the Construction Contract. Any singular reference to the Contractor, Surety, City or other party shall be considered plural where applicable.
The City of Santa Clara Construction Contract to which this Bond applies is:
City Contract No.: 2004D
In the Amount of: Two hundred and fifty nine thousand, seven hundred and sixty eight dollars and twenty cents ($259,768.20) (Referred to as the "Total Contract Price") The Contractor and Surety each acknowledge and accept the terms and conditions of this Bond as evidenced by the following signatures of their representatives. The Contractor and Surety each specifically represent that the individual representatives who have signed below are duly authorized to execute this Bond on its behalf. It is the intent of the Parties that this Bond shall become operative on the date first set forth above.
CONTRACTOR AS PRINCIPAL: SURETY:
Name:_Daleo, Inc. Name: The Guarantee Company of North America USA Principal Place of Business: Principal Place of Business:
Address: _ 550 E. Luchessa Avenue Address: 1 Towne Square, Suite 1470 City/State/Zip_ Gilroy CA 95020 City/State/Zip_Southfield MI 48076 Signature: Signature: _
Name: David Levisay Name: Vincent M. Scolari
Title: President Title: Attorney-In-Fact
(Please Note: Surety signature must be notarized)
(Please Apply Corporate Seal Here) (Please Apply Corporate Seal Here) Approved as to Form:
oratoly Date: 8/10/17
Interim City Attorney
Rev. 04/10/17 00610 - 1 Construction Performance Bond
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
BOND TERMS AND CONDITIONS
Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City for the complete and proper performance of the Construction Contract, which is incorporated herein by reference.
If Contractor completely and properly performs all of its obligations under the Construction Contract, Surety and Contractor shall have no obligation under this Bond.
If there is no City Default, Surety's obligation under this Bond shall arise after:
3.1 City has declared a Contractor Default under the Construction Contract pursuant to the terms of the Construction Contract; and
3.2 City has agreed to pay the Balance of the Contract Price:
3.2.1 To Surety in accordance with the terms of this Bond and the Construction Contract; or
3.2.2 To a contractor selected to perform the Construction Contract in accordance with the terms of this Bond and the Construction Contract.
4. When City has satisfied the conditions of paragraph 3, Surety shall promptly (within 30 days) and at Surety's expense elect to take one of the following actions:
Arrange for Contractor, with consent of City, to perform and complete the Construction Contract (but City may withhold consent, in which case the Surety must elect an option described in paragraphs 4.2, 4.3 or 4.4, below); or
Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; provided, that Surety may not select Contractor as its agent or independent contractor without City's consent; or
4.3 Undertake to perform and complete the Construction Contract by obtaining bids from qualified contractors acceptable to City for a contract for performance and completion of the Construction Contract, and, upon determination by City of the lowest responsible bidder, arrange for a contract to be prepared for execution by City and the contractor selected with City's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract; and, if Surety's obligations defined in paragraph 6, below, exceed the Balance of the Contract Price, then Surety shall pay to City the amount of such excess; or
4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, and, after investigation and consultation with City, determine in good faith its monetary obligation for the performance and completion of the
Construction Contract and, as soon as practicable after the amount is determined, tender payment therefore to City with full explanation of the payment's calculation.If City accepts Surety's tender under this paragraph 4.4, City may still hold Surety liable for future damages then unknown or unliquidated resulting from the Contractor Default. If City disputes the amount of Surety's tender under this paragraph 4.4, City may exercise all remedies available to it at law to enforce Surety's liability under paragraph 6, below.
Rev. 04/10/17 00610 - 2 Construction Performance Bond
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
5. If Surety does not proceed as provided in paragraph 4, above, then Surety shall be deemed to be in default on this Bond ten days after receipt of an additional written notice from City to Surety demanding that Surety perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available to City at law or under the Construction Contract including, without limitation, and by way of example only, rights to perform work, protect work, mitigate damages, advance critical work to mitigate schedule delay, or coordinate work with other consultants or contractors.
6. Surety's monetary obligation under this Bond is limited by the Amount of this Bond identified herein as the Penal Sum. This monetary obligation shall augment the Balance of the Contract Price. Subject to these limits, Surety's obligations under this Bond are commensurate with the obligations of Contractor under the Construction Contract. Surety's obligations shall include, but are not limited to:
6.1 The responsibilities of Contractor under the Construction Contract for completion of the Construction Contract and correction of defective work;
6.2 The responsibilities of Contractor under the Construction Contract to pay liquidated damages, and for damages for which no liquidated damages are specified in the Construction Contract, actual damages caused by non-performance of the Construction Contract including, but not limited to, all valid and proper backcharges, offsets, payments, indemnities, or other damages;
Additional legal, design professional and delay costs resulting from Contractor Default or resulting from the actions or failure to act of the Surety under paragraph 4, above (but excluding attorney's fees incurred to enforce this Bond).
7. No right of action shall accrue on this Bond to any person or entity other than City or its successors or assigns.
Surety hereby waives notice of any change, alteration or addition to the Construction Contract or to related subcontracts, purchase orders and other obligations, including changes of time.
Surety consents to all terms of the Construction Contract, including provisions on changes to the Contract. No extension of time, change, alteration, modification, deletion, or addition to the Contract Documents, or of the work required thereunder, shall release or exonerate Surety on this Bond or in any way affect the obligations of Surety on this Bond.
Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction where a proceeding is pending between City and Contractor regarding the Construction Contract, or in the courts of the County of Santa Clara, or in a court of competent jurisdiction in the location in which the work is located. Communications from City to Surety under paragraph 3.1 of this Bond shall be deemed to include the necessary agreements under paragraph 3.2 of this Bond unless expressly stated otherwise.
10. All notices to Surety or Contractor shall be mailed or delivered (at the address set forth on the signature page of this Bond), and all notices to City shall be mailed or delivered as provided in Document 00520, Agreement. Actual receipt of notice by Surety, City or Contractor, however accomplished, shall be sufficient compliance as of the date received at the foregoing addresses.
11. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein.
Rev. 04/10/17 00610 - 3 Construction Performance Bond
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D
12. Definitions.
12.1 Balance of the Contract Price: The total amount payable by City to Contractor pursuant to the terms of the Construction Contract after all proper adjustments have been made under the Construction Contract, for example, deductions for progress payments made, and increases/decreases for approved modifications to the Construction Contract.
12.2 Construction Contract: The agreement between City and Contractor identified on the signature page of this Bond, including all Contract Documents and changes thereto.
12.3 Contractor Default: Material failure of Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract including, but not limited to, "default" or any other condition allowing a termination for cause as provided in Document 00700, General Conditions.
City Default: Material failure of City, which has neither been remedied nor waived, to pay Contractor progress payments due under the Construction Contract or to perform other material terms of the Construction Contract, if such failure is the cause of the asserted Contractor Default and is sufficient to justify Contractor termination of the Construction Contract.
13. Surety shall submit following documents along with this Construction Performance Bond:
13.1 Verification that Surety is admitted to transact surety business the State of California; and
13.2 Copy of Surety's Certificate of authority issued by the insurance Commissioner of the State of California along with a statement that said Certificate has not been surrendered, revoked, cancelled, annulled or suspended.
END OF DOCUMENT
Rev. 04/10/17 00610 - 4 Construction Performance Bond
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Santa Clara )
On July 26, 2017 before me, __P.K. Simicich, Notary Public Date Here Insert Name and Title of the Officer
personally appeared Vincent M. Scolari
Name(s) of Signers)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 1 certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is true and correct.
P. K. SIMICICH WITNESS my hand and official seal.
Commission # 2124840
Notary Public - California Дебили
Santa Clara County Signature
My Comm. Expires Sep 21, 2019 Signature of Notary Public Place Notary Seal Above
- OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: _ Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Signer's Name:
• Corporate Officer - Title(s): • Corporate Officer - Title(s):
• Partner - • Limited • General • Partner - • Limited • General • Individual • Attorney in Fact • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Trustee • Guardian or Conservator • Other: • Other:
Signer Is Representing: - Signer Is Representing:
©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 notary public or other officer completing this certificate verifies only the identity of the individual who signed th locument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that documen State of California
County of _ Santa Clara
on July 27 + 2017 Lena Keller, Notary Public
before me,
Date Here Insert Name and Title of the Officer
David
personally appeared
Name(s) of Signers)
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph LENA KELLER is true and correct.
Commission 2111816 WITNESS my hand and official seal.
Notary Public - Callornia
Santa Clare County Ten tell
My Corm. Expires May 16, 2019 Signature _..
Signature of Notary Public
Place Notary Seal Above
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Die ortione oAtheD muction Purformance Document Date: Description of Attached Document
4.10.17 Number of Pages: Signers) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Dana UNEM Signer's Name:
7 Corporate Officer - Title(s: Psident • Corporate Officer - Title(s):
J Partner - • Limited • General • Partner - J Limited • General • Individual D Attorney in Fact • Individual • Attomey in Fact • Trustee • Guardian or Conservator • Trustee • Guardian or Conservator • Other: • Other:
Signer Is Representing: Dales the Signer Is Representing: _ ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
THE GUARANTEL
CONFANT O7
NORTH AMERICA THE GUARANTEE COMPANY OF NORTH AMERICA USA Southfield, Michigan
POWER OF ATTORNEY
NOW ALL BY THESE PRESENTS: That THE GUARANTEE COMPANY OF NORTH AMERICA USA, a corporation organized and existing under t ws of the State of Michigan, having its principal office in Southfield, Michigan, does hereby constitute and appoi Vincent M. Scolari, Patricia K. Simicich, Felicia R. Gardner, Wendy R. Pastora, David J. Bachan. F. R. Hudson, III, Deborah L. Tablal, Charles M. Griswold, Yesenia Rivera
McSherry & Hudson
true and lawtul attornevs-in-fact to execute. se
demnity a lavier wornes oligator to the ture el rend, delich afe aran be lowed resured permited lad, sade die, real on contra le execution of such instruments) in pursuance of these presents. sh principal office.
he Power of Attorney is executed and may be certified so, and may be revoked, pursuant to and by authority of Article IX, Section 9.03 of the By-Lav dopted by the Board of Directors of THE GUARANTEE COMPANY OF NORTH AMERICA USA at a meeting held on the 31 day of December, 200 The President, or any Vice President, acting with any Secretary or Assistant Secretary, shall have power and authority:
1. To appoint Attorneys)-in-fact, and to authorize them to execute on behalf of the Company, and attach the Seal of the Company thereto, bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof; and
2. To revoke, at any time, any such Attorney-in-fact and revoke the authority given, except as provided below
3. In connection with obligations in favor of the Florida Department of Transportation only, it is agreed that the power and authority hereby given to the Attorney-in-Fact includes any and all consents for the release of retained percentages and/or final estimates on engineering and construction contracts required by the State of Florida Department of Transportation. It is fully understood that consenting to the State of Florida Department of Transportation making payment of the final estimate to the Contractor and/or its assignee, shall not relieve this surety company of any of its obligations under its bond.
4. In connection with obligations in favor of the Kentucky Department of Highways only, it is agreed that the power and authority hereby given to the Attorney-in-Fact cannot be modified or revoked unless prior written personal notice of such intent has been given to the Commissioner - Department of Highways of the Commonwealth of Kentucky at least thirty (30) days prior to the modification or revocation.
Further, this Power of Attomey is signed and sealed by facsimile pursuant to resolution of the Board of Directors of the Company adopted at a meeting duly called and held on the 6th day of December 2011, of which the following is a true excerpt:
RESOLVED that the signature of any authorized officer and the seal of the Company may be affixed by facsimile to any Power of Attorney or certification thereof authorizing the execution and delivery of any bond, undertaking, contracts of indemnity and other writings obligatory in the nature thereof, and such signature and seal when so used shall have the same force and effect as though manually affixed.
IN WITNESS WHEREOF, THE GUARANTEE COMPANY OF NORTH AMERICA USA has caused this instrument to be signed and its corporate seal to be affixed by its authorized officer, this 23rd day of February, 2012.
THE GUARANTEE COMPANY OF NORTH AMERICA USA
Коноетристь
STATE OF MICHIGAN Stephen C. Ruschak, Vice President Randall Musselman, Secretary County of Oakland
On this 23rd day of February, 2012 before me came the individuals who executed the preceding instrument, to me personally known, and being by me duly sworn, said that each is the herein described and authorized officer of The Guarantee Company of North America USA; that the seal affixed to sair nstrument is the Corporate Seal of said Company; that the Corporate Seal and each signature were duly affixed by order of the Board of Directors Cynthia A. Takai IN WITNESS WHEREOF, I have hereunto set my hand at The Guarantee Notary Public, State of Michigan Company of North America USA offices the day and year above written.
County of Oakland
My Commission Expires February 27, 2018
Cynthia 9. Takai
Actina in Oakland County
I, Randall Musselman. Secretary of THE GUARANTEE COMPANY OF NORTH AMERICA USA, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attomey executed by THE GUARANTEE COMPANY OF NORTH AMERICA USA, which is stilt in full force and effect.
IN WITNESS WHEREOF, I have thereunto set my hand and attached the seal of said Company this 26th day of July , 2017 Randall Musselman, Secretary
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D DOCUMENT 00630
GUARANTY
TO THE CITY OF SANTA CLARA, a chartered Municipal Corporation of the State of California ("City"), for construction of:
SANTA CLARA, CALIFORNIA
The undersigned guarantees all construction performed on this Project and also guarantees all material and equipment incorporated therein.
Contractor hereby grants to City for a period of one (1) year following the date of Final Completion, or such longer period specified in the Contract Documents, its unconditional warranty of the quality and adequacy of all of the Work including, without limitation, all labor, materials and equipment provided by Contractor and its Subcontractors of all tiers in connection with the Work.
3. Neither final payment nor use or occupancy of the Work performed by the Contractor shall constitute an acceptance of Work not done in accordance with this Guaranty or relieve Contractor of liability in respect to any express warranties or responsibilities for faulty materials or workmanship. Contractor shall remedy any defects in the Work and pay for any damage resulting therefrom, which shall appear within one (1) year, or longer if specified in the Contract Documents, from the date of Final Completion.
4. If within one (1) year after the date of Final Completion, or such longer period of time as may be prescribed by laws or regulations, or by the terms of Contract Documents, any Work is found to be defective, Contractor shall promptly, without cost to City and in accordance with City's written instructions, correct such defective Work. Contractor shall remove any defective Work rejected by City and replace it with Work that is not defective, and satisfactorily correct or remove and replace any damage to other Work or the work of others resulting therefrom. If Contractor fails to promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the defective Work corrected or the rejected Work removed and replaced Contractor shall pay for all claims, costs, losses and damages caused by or resulting from such removal and replacement. Where Contractor fails to correct defective Work, or defects are discovered outside the correction period, City shall have all rights and remedies granted by law.
Inspection of the Work shall not relieve Contractor of any of its obligations under the Contract Documents. Even though equipment, materials, or Work required to be provided under the Contract Documents have been inspected, accepted, and estimated for payment, Contractor shall, at its own expense, replace or repair any such equipment, material, or Work found to be defective or otherwise not to comply with the requirements of the Contract Documents up to the end of the guaranty period.
6. All abbreviations and definitions of terms used in this Agreement shall have the meanings set forth in the Contract Documents, including, without means of limitation, Section 00050, References and Definitions.
Rev. 04/10/17 00630 - 1 Guaranty
Electric Utility Substructure and Aerial Fiber Optic Cable Master Construction Agreement CONTRACT NO. 2004D The foregoing Guaranty is in addition to any other warranties of Contractor contained in th contract Documents, and not in lieu of, any and all other liability imposed on Contractor under th Contract Documents and at law with respect to Contractor's duties, obligations, and performance under the Contract Documents. In the event of any conflict or inconsistency between the terms of this Guaranty and any warranty or obligation of the Contractor under the Contract Documents or at law, such inconsistency or conflict shall be resolved in favor of the higher level of obligation of the Contractor.
DALEO, INC.
a California corporation
127-17
By: /David Levisay
Title: President
Address: 550 E Luchessa Avenue
Gilroy, CA 95020
Telephone: (408) 846-9621
Fax: (408) 846-9611
END OF DOCUMENT
Rev. 04/10/17 00630 - 2 Guarantv