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PW 2017 Storm Damage Repair - #21 San PabloCity of San Rafael ♦ California Form of Agreement for 2017 Storm Damage Repair -#21 San Pablo This Agreement is made and entered into thi~~ay ot5qt~Ol8 by and between the City of San Rafael (hereinafter called City) and Hillside Drilling, Inc. (hereinafter called Contractor). Witnesseth, that the City and the Contractor, for the considerations hereinafter named, agree as follows: I -Scope of the Work The Contractor hereby agrees to furnish all of the materials and all of the equipment and labor necessary, and to perfonn all of the work described in the specifications for the project entitled: 2017 Storm Damage Repair -#21 San Pablo, all in accordance with the requirements and provisions of the Contract Documents as defined in the General Conditions which are hereby made a part of this Agreement. The required additional insured coverage for City under contractor's liability insurance policy shall be primary with respect to any insurance or coverage maintained by city and shall not call upon city's insurance or self-insurance for any contribution. II-Time of Completion (a) The work to be performed under this Contract shall be commenced within Five (5) Working Days after the date of written notice by the City to the Contractor to proceed. (b) All work shall be completed, including all punchlist work, within Forty (40) Working Days and with such extensions of time as are provided for in the General Provisions. Ill -Liquidated Damages It is agreed that, if all the work required by the contract is not finished or completed within the number of working days as set forth in the contract, damage will be sustained by the City, and that it is and will be impracticable and extremely difficult to ascertain and determine the actual damage which the City will sustain in the event of and by reason of such delay; and it is therefore agreed that the Contractor will pay to the City, the sum of$500 for each and every calendar day's delay in finishing the work in excess of the number of working days prescribed above; and the Contractor agrees to pay said liquidated damages herein provided for, and further agrees that the City may deduct the amount thereof from any moneys due or that may become due the Contractor under the contract. IV -The Contract Sum The City shall pay to the Contractor for the performance of the Contract the amounts determined for the total number of each of the units of work in the following schedule completed at the unit price stated. The number of units contained in this schedule is approximate only, and the final payment shall be made for the actual number of units that are incorporated in or made necessary by the work covered by the Contract; provided that the total compensation under this Contract shall not exceed One Hundred Ninety-Eight Thousand Eight Hundred Fifty Dollars and 00/100 ($198,850.00) unless a written amendment is executed by the City and the Contractor. ORIGINAL BASE BID ITEMS NO. ITEM QUANTI UNIT UNIT TOTAL PRICE TY s PRICE 1. Mobilization (3% of 1 LS @ $15,000 .00 = $15,000.00 Base Bid) 2. Signs and Traffic Control LS @ $14,000.00 $14,000.00 3. Clearing and Grubbing LS @ $16,000.00 $16,000.00 4. Excavation and Backfill 100 CY @ $189.00 $18,900.00 ** 5. Cast in Drilled Hole 64 LF @ $450.00 $28,800.00 (CIDH) Piles ** 6. Concrete Retaining Wall 30 CY @ $1,600 .00 $48,000.00 ** 7. Tiebacks** 210 LF @ $210.00 $44,100.00 8. 6" Diameter Perforated 45 LF @ $160.00 $7,2000 Subdrain 9. 6" Diameter Solid 15 LF @ $60.00 $900.00 Subdrain 10. Subdrain Cleanout 1 EA @ $600.00 $600.00 11. 6" Minus Rock Rip Rap 2 TON @ $500.00 $1,000.00 12. ¾" Clean Crushed 15 TON $150.00 $2,250.00 Drainrock 13. Mirafi 140N Filter Fabric 700 SF $3.00 $2,100.00 BASE BID ~198,850.00 V -Progress Payments (a) On not later than the 6th day of every month the Public Works Department shall prepare and submit an estimate covering the total quantities under each item of work that have been completed from the start of the job up to and including the 25th day of the preceding month, and the value of the work so completed determined in accordance with the schedule of unit prices for such items together with such supporting evidence as may be required by the City and/or Contractor . (b) As soon as possible after the preparation of the estimate, the City shall, after deducting previous payments made, pay to the Contractor 95% of the amount of the estimate as approved by the Public Works Department. ( c) Final payment of all moneys due shall be made within 15 days after the expiration of 35 days following the filing of the notice of completion and acceptance of the work by the Public Works Department. ( d) The Contractor may elect to receive 100% of payments due under the contract from time to time, without retention of any portion of the payment by the public agency, by depositing securities of equivalent value with the public agency in accordance with the provisions of Section 22300 of the Public Contract Code. Such securities, if deposited by the Contractor, shall be valued by the City's Finance Director, whose decision on valuation of the securities shall be final. VI -Acceptance and Final Payment (a) Upon receipt of written notice that the work is ready for final inspection and acceptance, the Engineer shall within 5 days make such inspection, and when he finds the work acceptable under the Contract and the Contract fully performed, he will promptly issue a Notice of Completion, over his own signature, stating that the work required by this Contract has been completed and is accepted by him under the terms and conditions thereof, and the entire balance found to be due the Contractor, including the retained percentage, shall be paid to the Contractor by the City within 15 days after the expiration of 35 days following the date of recordation of said Notice of Completion. (b) Before final payment is due the Contractor shall submit evidence satisfactory to the Engineer that all payrolls, material bills, and other indebtedness connected with work have been paid, except that in case of disputed indebtedness or liens the Contractor may submit in lieu of evidence of payment a surety bond satisfactory to the City guaranteeing payment of all such disputed amounts when adjudicated in cases where such payment has not already been guaranteed by surety bond. ( c) Contractor shall provide a "Defective Material and Workmanship Bond" for 50% of the Contract Price, before the final payment will be made. (d) The making and acceptance of the final payment shall constitute a waiver of all claims by the City, other than those arising from any of the following: (1) unsettled liens; (2) faulty work appearing within 12 months after final payment; (3) requirements of the specifications; or ( 4) manufacturers' guarantees. It shall also constitute a waiver of all claims by the Contractor, except those previously made and still unsettled . (e) If after the work has been substantially completed, full completion thereof is materially delayed through no fault of the Contractor, and the Engineer so certifies, the City shall, upon certificate of the Engineer, and without terminating the Contract, make payment of the balance due for that portion of the work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of claims . VII -Assignment of Warranties; Waiver of Subrogation (a) Contractor hereby assigns to City all warranties, guarantees, or similar benefits such as insurance, provided by or reasonably obtainable from the manufacturers or suppliers of equipment, material or fixtures that Contractor has installed or provided in connection with the work performed under this Agreement. (b) Contractor hereby agrees to waive and arrange by contract for its subcontractors to waive any subrogation rights which any insurer of Contractor or its subcontractors might otherwise acquire in connection with the insurer's payment to Contractor or its subcontractors of any insured loss with respect to work performed under this Agreement. Contractor further agrees to obtain and to arrange for its subcontractors to obtain for City's benefit any endorsements from insurers that may be necessary to effect such waiver of subrogation. Specifically, any worker's compensation insurance policies of the Contractor or its subcontractors shall be endorsed with a waiver of subrogation in favor of City for any work performed by Contractor or its subcontractors under this Agreement, and copies of such endorsements shall be provided to City. IN WITNESS WHEREOF, City and Contractor have caused their authorized representatives to execute this Agreement the day and year first written above. ATTEST: Lindsay Lara City Clerk APPROVED AS TO FORM: ~Q ~~e lfgfE Rob Epstein I City Attorney [Title of Corporate Officer] and ~'~~ By:_Lo~vi.,~L_Q,Vv'\_~~--- [Print Name of Corporate Officer] =w~~-\ct~ [Title of Corporate Officer] HILLSIDE DRILLI NG I NC. P.O. Box 70130-Pt. Richmond, CA 94807 Office 510-234-6532 / Fax 510-234-3131 Letter of Transmittal To: City of San Rafael Shawn Graf Subject: 21 San Pablo -Revised Bonds HSD Job #: 1827 Date: 9/28/2018 HEREWITH ARE THE FOLLOWING DOCUMENTS FOR ACTION OR USE AS INDICATED ,; RECEIVED ,., .. OCT O I 2018 •' ~UBLIC WORKS DEPT ,. ITY OF SAN RAFAEL 3 EA Bonds-Revised For Approval or Action -- -- -- -- Remarks: Copy To: ss, ac, file Signed: a/JI{ Cheryl Walsh EXECUTED IN TRIPLICATE Bond No. 30045898 ----------- PREMIUM : 2,863.00 Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY: HILLSIDE DRILLING . INC . WESTERN SURETY COMPANY 539 S. 11TH STREET 555 MISSION STREET, SUITE 200 RICHMOND, CA 94804 SAN FRANCISCO, CA 94105 OWNER (Name and Address): CITY OF SAN RAFAEL 1400 FIFTH AVENUE SAN RAFAEL, CA 94901 CONSTRUCTION CONTRACT Date: AUGUST 28, 2018 Amount: $_1_98_,8_5_o_.o_o _______________________________ _ ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTY AND N0/100 ................................................... Dollars Description (Name and Location): 2017 STORM DAMAGE REPAIRS -#21 SAN PABLO, SAN RAFAEL, CA BOND: Date: _s_E_PT_E_M_B_E_R_24_,_20_1_0 ____ (Not earlier than Construction Contract Date) Amount: _$_19_8_,8_5o_.o_o _______________________________ _ ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTY AND N0/100 ................................................... Dollars Modifications to this Bond: [l]_None Osee Section 16 CONTRACTOR AS PRINCIPAL SURETY Company Company H~LLSIDE DRILL~±:= WESTERN SURETY COM~ANY ~ Signature: _df.uut__.,~~'-'-ta~,,_~,_,~-~~---Signature: -~.;:....__.....c.......:c\_;"to==~:...:::J'l.=c=------- Name:sEAN SILVEIRA Name: CLAY THOMPSON ---------------------· Title: VICE PRESIDENT Title: ATTORNEY-IN-FACT (Any additional signatures appear on the last page of this Perfonnance Bond) FOR INFORMATION ONLY -Name, address and telephone AGENT OR BROKER: OWNER'S REPRESENTATIVE: (Architect, Engineer or other party) !EU SANDER JACOBS CASSAYRE INSURANCE SERVICES 3200 VILL~ LANE ------------------NAPA, CA 94558 707-252-ed22 ------------------- Language conforms to AJA Document A3 l 2 Performance Bond, 20 IO edit ion. PRF76003ZZ071 lf ------------------------· ----------------··--·----····· 1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in Section 3. 3. If there is no Owner Default under the Construction Contract, the Surety's obligation under this Bond shall arise after: . I the Owner first provides notice to the Contractor and the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is requesting a conference among the Owner, Contractor and Surety to discuss the Contractor's performance. If the Owner does not request a conference, the Surety may, within five (5) business days after receipt of the Owner's notice, request such a conference. If the Surety timely requests a conference, the Owner shall attend. Unless, the Owner agrees otherwise, any conference requested under this Section 3.1 shall be held within ten (IO) business days of the Surety's receipt of the Owner's notice. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; .2 the Owner declares a Contractor Default, terminates the Construction Contract and notifies the Surety; and .3 the Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction Contract to the Surety or to a contractor selected to perform the Construction Contract. 4. Failure on the part of the Owner to comply with the notice requirement in Section 3. I shall not constitute a failure to comply with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety demonstrates actual prejudice . 5. When the Owner has satisfied the conditions of Section 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 5 . I Arrange for the Contractor, with the consent of the Owner, to perform and complete the Construction Contract; 5 .2 Undertake to perform and complete the Construction Contract itself, through its agents or independent contractors; 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and a contractor selected with the Owner'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 pay to the Owner the amount of damages as described in Section 7 in excess of the Balance of the Contract Price incurred by the Owner as a result of the Contractor Default; or 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: . I After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, make payment to the Owner; or .2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial. 6. If the Surety does not proceed as provided in Section 5 with reasonable promptness, the Surety shall be deemed to be in default on this Bond seven days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Section 5.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 7. If the Surety elects to act under Section 5.1, 5 .2, or 5 .3, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. Subject to the Language confonns to AJA Document A312 Perfonnance Bond, 2010 edition. PRF76003ZZ071 lf commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated, without duplication, for .1 the responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; .2 additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Section 5; and .3 liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 8 . If the Surety elects to act under Section 5.1, 5.3 or 5.4, the Surety's liability is limited to the amount of this Bond. 9. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators, successors and assigns. 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 . Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after a declaration of Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perfonn its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to the Surety , the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14. DEFINITIONS 14.1 Balance of the Contract Price. The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 14.2Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. 14.3Contractor Default. Failure of the Contractor, which has not been remedied or waived, to perform or otherwise to comply with a material term of the Construction Contract. 14.40wner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 14.5Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. 15. If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. Language confonns to AJA Document A3 I 2 Perfonnance Bond, 20 IO ed ition , PRF7600322071 lf 16. Modifications to this Bond are as follows: N I A (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company HILLSIDE DRILLING, INC. Signature: _N_/_A ____________ _ Name:SEAN SILVEIRA Title: VICE PRESIDENT Language confonns to AJA Document A3 I 2 Perfonnance Bond, 20 IO edition. PRF76003ZZ0711 f SURETY Company WESTERN SURETY COMPANY Signature: _N_/A _____________ _ Name: CLAYTHOMPSON Title: ATTORNEY-IN-FACT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ,,.a e e Ell ea e e see Ft f51 -, 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 NAPA On SEPTEMBER 24, 2018 before me, ___ K'-'-'-. _M_._W_I_L_L_BA_CK___,_, _N_O_T_AR_Y_P_UB_L_I_C _____ _, Date Here Insert Name and Title of the Officer personally appeared ----------=C=LA:.::.Y.:;........:T:;.:;H.;.;;O;;.:.M=P..::;S;..:;O=N ____________ _ Name(§) of Signer(fv who proved to me on the basis of satisfactory evidence to be the person(s) whose nameOO Is~ subscribed to the within instrument and acknowledged to me that he~hllt executed the same in his/m!wtbBlr authorized capaci~s). and that by hi~ir signature(s) on the instrument the person(l), or the entity upon behalf of which the person(s) acted, executed the Instrument. eta._,,..,..• e &ec e e,, ~ ~ K. M. W 'LLBAC ~ : l:."t,;~j;. Notary Public Ca l,fo rn a ,; <; .?.~;.•· ,( ,.:~ Napa County > '.r \~--!~";fj Comm ss on= 2228905 - ~_};:,,V My Comm. Exp res Feb Id, 2G22 Place Notary Seal Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. Signature \{JM IAhiU&Ql~ ·Signature of Notary Public ---------------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: ___ Signer(s) Other Than Named Above: ___________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ___________ _ □ Corporate Officer -Trtle(s): _____ _ □ Corporate Officer -Tltle(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: ________ _ L Z3C Ek ow. L Cc&:.iB~Ndil @2014 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 EXECUTED IN TRIPLICATE BOND NO.: 30045898 ---------- PREMIUM INCLUDED IN PERFORMANCE BOND Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY: HILLSIDE DRILLING, INC. WESTERN SURETY COMPANY 539 S. 11TH STREET 555 MISSION STREET, SUITE 200 RICHMOND, CA 94804 SAN FRANCISCO, CA 94105 OWNER (Name and Address): CITY OF SAN RAFAEL 1400 FIFTH AVENUE SAN RAFAEL, CA 94901 CONSTRUCTION CONTRACT Date: AUGUST 28 , 2018 Amount:$ 198,850.00 -~--------------O NE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTY AND NO/100 ............................................................................................... Dollars Description (Name and Location): 2017 STORM DAMAGE REPAIRS · #21 SAN PABLO, SAN RAFAEL, CA BOND: Date: SEPTEMBER 24 , 20 18 (Not earlier than Construction Contract Date) Amount: $198,850.00 ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTY AND NO/100 ............................................... Dollars Modifications to this Bond: [ZJ None D See Section 18 CONTRACTOR AS PRINCIPAL Company: (Corporate Seal) HILLSIDE DRI LLI NG, IN Signature: ~~~~~e.~~{A~~~:_ __ Name: SEAN SILVEIRA Title: VICE PRESIDENT SURETY Company: (Corporate Seal) WESTERN SURETY COMPANY Signature: ~ Tu~ Name: cLAYTHOMsoN Title: ATTORNEY-IN-FACT (Any additional signatures appear on the last page of this Payment Bond) (FOR INFORMATION ONLY -Name, address and telephone) AGENT OR BROKER: ISU ~A"IDER JACOBS CASSAYRE INSURANCE SERVICES 3200 VILLA Lt.NE NAPA, CA 94558 707-252-8822 Language conforms to AJA Document A312 Payment Bond, 20 IO edition. PAY76003ZZ0613f OWNER'S REPRESENTATIVE: (Architect, Engineer or other party: ---------------------- I. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference, subject to the following terms. 2. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond . 3. If there is no Owner Default under the Construction Contract, the Surety's obligation to the Owner under this Bond shall arise after the Owner has promptly notified the Contractor and the Surety (at the address described in Section 13) of claims, demands, liens or suits against the Owner or the Owner's property by any person or entity seeking payment for labor, materials or equipment furnished for use in the performance of the Construction Contract and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety. 4. When the Owner has satisfied the conditions in Section 3, the Surety shall promptly and at the Surety's expense defend, indemnify and hold harmless the Owner against a duly tendered claim, demand, lien or suit. 5. The Surety's obligation to a Claimant under this Bond shall arise after the following : 5.1 Claimants, who do not have a direct contract with the Contractor .1 have furnished a written notice of non-payment to the Contractor, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were, or equipment was, furnished or supplied or for whom the labor was done or performed, within ninety (90) days after having last performed labor or last furnished materials or equipment included in the Claim; and .2 have sent a Claim to the Surety (at the address described in Section 13) 5.2 Claimants, who are employed by or have a direct contract with the Contractor, have sent a Claim to the Surety ( at the address described in Section 13 ). 6. If a notice of non-payment required by Section 5 .1.1 is given by the Owner to the Contractor that is sufficient to satisfy a Claimant's obligations to furnish a written notice of non-payment under Section 5.1.1. 7 . When a Claimant has satisfied the conditions of Sections 5.1 or 5.2, whichever is applicable, the Surety shall promptly and at the Surety's expense take the following actions: 7.1 Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt of the Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed; and 7.2 Pay or arrange for payment of any undisputed amounts. 7.3 The Surety's failure to discharge its obligations under Section 7.1 or Section 7.2 shall not be deemed to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim, except as to undisputed amounts for which the Surety and Claimant have reached agreement. If, however, the Surety fails to discharge its obligations under Section 7.1 or Section 7.2, the Surety shall indemnify the Claimant for the reasonable attorney's fees the Claimant incurs thereafter to recover any sums found to be due and owing to the Claimant. 8. The Surety's total obligation shall not exceed the amount of this Bond, plus the amount of reasonable attorney's fees provided under Section 7.3, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 9. Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any construction performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the Language conforms to AJA Document A312 Payment Bond, 2010 edition. PAY76003ZZ0613f performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 10. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of any costs, or expenses of any Claimant under this Bond, and shall have under this Bond no obligation to make payments to, or give notice on behalf of, Claimants or otherwise have any obligations to Claimants under this Bond. 11. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 12. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the state in which the project that is the subject of the Construction Contract is located or after the expiration of one year from the date (I) on which the Claimant sent a Claim to the Surety pursuant to Section 5. I or 5.2, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (I) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 13. Notice and Claims to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears . Actual receipt of notice or Claims, however accomplished, shall be sufficient compliance as of the date received . 14. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished, the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 15. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made. 16 . DEFINTIONS 16.1 Claim. A written statement by the Claimant including at a minimum: .1 the name of the Claimant; .2 the name of the person for whom the labor was done, or materials or equipment furnished; .3 a copy of the agreement or purchase order pursuant to which labor, materials or equipment was furnished for use in the performance of the Construction Contract; .4 a brief description of the labor, materials or equipment furnished; .5 the date on which the Claimant last performed labor or furnished or last furnished materials or equipment for use in the performance of the Construction Contract: .6 the total amount earned by the Claimant for labor, materials or equipment furnished as of the date of the Claim; . 7 the total amount of previous payments received by the Claimant; and .8 the total amount due and unpaid to the Claimant for labor, materials or equipment furnished as of the date of the claim. 16.2 Claimant. An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for a which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. Language conforms to AIA Document A3 l 2 Payment Bond, 20 IO edition. PAY76003ZZ0613f 16.3 Construction Contract. The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and all changes made to the Agreement and the Contract Documents. 16.4 Owner Default. Failure of the Owner, which has not been remedied or waived, to pay the Contractor as onstruction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 16.S Contract Documents. All the documents that comprise the agreement between the Owner and Contractor. 17. If this Bond is issued for an agreement between a Contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 18. Modifications to this Bond are as follows: N/A (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: HILLSIDE DRILLING , INC. (Co,porate Seal) Signature: _N_/A ___________ _ Name: SEAN SILVEIRA Title: v1cE PRESIDENT Language conforms to AIA Document A3 I 2 Payment Bond, 20 IO edition PAY76003ZZ0613f SURETY Company : WESTERN SURETY COMPANY (C01porate Seal) Signature: _N_/A _____________ _ Name: CLAY THOMPSON Title: ATTORNEY-IN-FACT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 ,e -t!tl RE Rif? C ffl R o/0 F a,oaoaeae PX 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 valldlty of that document. State of California County of NAPA On SEPTEMBER 24, 2018 before me, __ ___,;;_;K..;..._M_. _W_I_L_L_B_A_C_K_.,_N_O_T_AR_Y_P_UB_L_I_C ____ ___, Date Here Insert Name and Title of the Officer personally appeared -------------=-CL=A:.:;Y.;:;._T::..:H;.:.;O::..:M..:..:P:..:S::..:Oc.=N"'--___________ _ Name(§) of Signer(fv who proved to me on the basis of satisfactory evidence to be the person(B) whose nameOO lsle1tec subscribed to the within instrument and acknowledged to me that he,jm.fiMth§OC executed the same in his/iue112befr authorized capaci~s). and that by hi~:ir signature(s) on the instrument the person~, or the entity upon behalf of which the person(s) acted, executed the Instrument. ~ K. M . WILLBf\CK ff'... r~-;;s• Notary Public -California z s ~~-· '.(~;t; Nap, CC'unty ~ l \~eft.11' Cornm ,ss ,on ii 2228'.)05 ,,, L '~:!b ;;f:i'.Y My Comm . E~.pires Feb 14, 2';;;'..[ ~~~· = = -QJPl Place Notary Seal Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph ls true and correct. WITNESS my hand and official seal. Signarure 8M [A}LAJL~c)f____,,; Signature of Notary Public ---------------QPT/DNAL--------------- 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: ___ Signer(s) Other Than Named Above: ___________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ___________ _ □ Corporate Officer -Trtle(s): ______ _ □ Corporate Officer -Trtle(s): _____ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator D Trustee □ Guardian or Conservator □Other: _____________ _ D Other: _____________ _ Signer Is Representing: _________ _ Signer Is Representing: ________ _ Sc -36.$1 L J ~NEES ©2014 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota cmporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Clay Thompson, Robert E Chovick, Jeffrey D. Erickson, Bryan Richmond, Karen M Willback, Individually of Napa, CA, its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature -In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By-Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 21st day of November, 2017. State of South Dakota County of Minnehaha WESTERN SURETY COMPANY On this 21st day of November, 2017, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires June 23, 2021 J. Mohr, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By-Law of the corporatim~n¥ on the reverse hereof f _s ~ill into~e. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this ___ 'r_~ __ day of ~~;\_ , .;? () { f(. WESTERN SURETY COMPANY Form F4280-7-2012 Go to www.cnasurety.com > Owner/ Obligee Services > Validate Bond Coverage, if you want to verify bond authenticity. Authorizing By-Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. TI1e corporate seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. HILL SIDE DRILLI NG INC. P .0. Box 70130-Pt. Richmond, CA 94807 Office 510-234-6532 / Fax 510-234-3131 To: City of San Rafael Shawn Graf Letter of Transmittal Subject: Contract/Bond 21 San Pablo 2017 Storm Dama qe Re pair HSD Job #: 1827 Date: 9/25/2018 RECEIVED SEP 2 6 2018 b~Nwf~~~iim- HEREWITH ARE THE FOLLOWING DOCUMENTS FOR ACTION OR USE AS INDICATED 3 EA Signed Contract Sign and Return One Copy to Our 3 EA Bonds For Approval or Action -- -- -- Remarks: CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Public Works Extension: 5347 Project Manager: Shawn Graf Contractor Name: Hill Side Drilling Contractor's Contact: Andy Clisham Contact's Email: Andy@hillsidedrilling.com D FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED DEPARTMENT DATE 1 Project Manager a. Email PINS Introductory Notice to Contractor 6/29/2018 6/29/2018 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 7/2/2018 and return to Project Manager 7/1/2018 b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 9/24/2018 contractor 4 Project Manager Forward three (3) originals of final agreement to 9/24/2018 contractor for their signature 5 Project Manager When necessary, contractor-signed agreement ~ N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 7/16/2018 Date of City Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 9/26/2018 Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed if)l~IJ'D agreement 8 City Attorney Review and approve insurance in PINS, and bonds 10/3 /1 ~ (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized /tJ /16 /1,r official 10 City Clerk Attest signatures, retains original agreement and I I - forwards copies to Project Manager \o ho I IP) . l\-\-l-~~ REVIEWER Check/Initial Q9 KM KM 18] 18] LG ~ LG ~ KM ~ ~ SG SG 4 A!- ' / \ ~~