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HomeMy WebLinkAboutC-28181100 -40 /C -2818 DESIGN BUILD CONTRACT BETWEEN CITY OF ARCADIA AND TKE CONSTRUCTION INC. Thi Design -Build Contract ( "Contract ") is made and entered into this 4h day of 2013, by and between the by and between the CITY OF ARCADIA ("City) and TKE N RUCTION INC. (the "Design Build Entity "), for the purpose of designing and constructing the MUSEUM EDUCATION CENTER (the "Project "). The City and the Design Build Entity are herein collectively referred to as the "Parties." RECITALS A. The City desires to contract with a single entity for design and construction of the Project, as set forth in this Contract. B. The Design Build Entity was invited to respond to the City's Request for Proposal ( "RFP ") for the Project. C. The Design Build Entity submitted a Proposal for the Project, which was selected as providing the best -value for the Project, and is prepared to enter into this Contract. AGREEMENT In consideration of the above recitals and the mutual covenants and conditions set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby set forth their mutual covenants and understandings as follows: I. Incorporation of Recitals. The above referenced recitals are true and correct and are incorporated into this Contract by this reference. 2. Design Build Enti . The Design Build Entity consists of TKE CONSTRUCTION INC. functioning as the designer /design team for the Project and providing architectural services, and TKE CONSTRUCTION INC. as the general contractor for the project and providing all construction services for the Project. For purposes of this Contract, a properly authorized representative of Design Build Entity shall execute the Contract on its behalf, and shall have the full authority to make all decisions necessary on behalf of the Design Build Entity Notwithstanding the foregoing, the City may accept bonds provided from the member of the Design Build Entity designated for construction services, and /or professional liability insurance from the member of the Design Build Entity designated for design/architectural services. 3. Incorporation of Documents. 3.1 This Contract includes and hereby incorporates in full by reference the following Contract Documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto: 24347.00600\7801407.I - I - DESIGN -BUILD CONTRACT Request for Proposal ( "RFP ") and all exhibits, addenda, attachments and appendices Design Build Entity Proposal in response to RFP dated April 18, 2013 Contract General Conditions Attachment 1 to this Contract - Cost of Extra Work Attachment 2 to this Contract - Performance Bond Attachment 3 to this Contract - Payment Bond Attachment 4 to this Contract - Workers Compensation Certification 3.2 Acknowledgement of Contract Documents. The above documents constitute and may hereinafter be referred to as the "Contract Documents_" In addition to signing this Contract, the Design Build Entity shall review and execute where appropriate all the Attachments to this Contract described above. Also, the Design Build Entity shall initial this paragraph immediately below acknowledging that he or she has read, understood and agrees with all of the terms of the Contract Documents, including, but not limited to, provisions of the General Conditions relating to indemnification, insurance, standards of performance, termination, compensation and time of the essence performance. the Design Build Entity shall not disclaim knowledge of the meaning and effect of any term or provision of the Contract Documents, and agrees to strictly abide by their meaning and intent. In the event that the Design Build Entity fails to initial below, the City shall have the right to declare the Contract unexecuted and to award the Contract to anoth;e J Design Build Entity in accordance with California law. Design Build Entity's Initials 4. The Design Build Entity's Obligations. 4.1 Guaranteed Maximum Price. The Design Build Entity promises and agrees, at its own cost and expense, to furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project as described in the Contract Documents (hereinafter the "Scope of Work "), for a Guaranteed Maximum Price ( "GMP ") of Seven Hundred Ninety Seven Thousand Five Hundred Eighty One Dollars and Zero Cents ($797,581.00) as stated in the Design Build Entity's Proposal submitted in response to the RFP. Unless otherwise stated in the Contract Documents, the GMP shall pay for all costs and expenses required to design and construct the Project. 24347.0060417801407.1 - 2 - DESIGN -BUILD CONTRACT 4.2 Extra Work. Extra Work shall have the meaning given to it in the General Conditions. Extra Work shall be compensated at the rates set forth in Attachment 1 to this Contract, and shall be initiated only upon written approval by the City as described in the General Conditions. 4.3 Standard of Performance. The Design Build Entity's performance of the work set forth in the Contract Documents shall at all times be performed in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline(s) in the State of California, and Design Build Entity shall be fully responsible to City for any damages or delays to the Project caused by the Design Build Entity as specified in the indemnification provision of this Contract. The Design Build Entity's performance shall at all times be in conformance with the standards set forth in the Contract and the General Conditions. 5. Period of Performance Liquidated Damages, and Performance Incentive. 5.1 The Design Build Entity guarantees that it shall perform and complete all work necessary for Completion of the Project, as defined in the General Conditions, by the Guaranteed Completion Date of April 1, 2014 ( "GCD "). 5.2 The Design Build Entity agrees that liquidated damages will apply in the amount of $500 for each and every calendar day beyond the GCD that Final Completion of the Project has not been achieved. b. The City's Basic Obligation. The City agrees to engage and do hereby engage the Design Build Entity as an independent contractor to furnish all materials and to perform all work described in the Scope of Work for the Project according to the terms and conditions herein contained for the GMP set forth above. Except as otherwise provided in the Contract, the City shall pay to the Design Build Entity, as full consideration for the satisfactory performance by the Design Build Entity of the services and obligations required by this Contract, the above referenced compensation in accordance with compensation provisions set forth in the Contract. 7. Representatives. 7.1 City's Representative. The City hereby designates Tom Tait, Public Works Services Director, as the person to act as its representative for the performance of this Contract ( "City's Representative "). The City's Representative shall be authorized to act as liaison between City and the Design Build Entity in the administration of this Contract and all work on the Project. The City's Representative shall have the power to act on behalf of the City for all purposes under this Contract. City may designate new and/or different individuals to act as City's Representative from time to time upon written notice to the Design Build Entity. Design Build Entity's Representative. The Design Build Entity hereby designates Shawn Ryan, or his designee, to act as its representative for the performance of this Contract ( "Design Build Entity's Representative "). Design Build Entity's Representative shall have full authority to represent and act on behalf of the Design Build Entity for all purposes under this Contract. The Design Build Entity's Representative shall supervise and direct all work on the 24347.00600W801407.1 -3 - DESIGN -BUILD CONTRACT Project, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the work pursuant to this Contract. 8. Design Build Entity's Licensing The Design Build Entity shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. The Design Build Entity hereby designates TKE CONSTRUCTION INC., Contractor's License 976882 -B to act as the licensed general contractor for the Project. Design Build Entity's general contractor shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Design Build entity shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the general contractor shall be subject to the City's prior written approval, which approval shall not be unreasonably withheld. The new general contractor shall be of at least equal competence as the prior general contractor. In the event that City and Design Build Entity cannot agree as to the substitution of a new general contractor, the City shall be entitled to terminate this Contract as described in the General Conditions. 9. Design Build Entity's Design Professional of Record. The Design Build Entity shall name a specific person to act as the Design Professional of Record as described in the General Conditions, subject to the approval of the City. The Design Build Entity hereby designates TKE CONSTRUCTION INC. to act as the Design Professional of Record for the Project. Design Build Entity's Design Professional of Record shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Design Build entity shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional of Record shall be subject to the City's prior written approval, which approval shall not be unreasonably withheld. The new Design Professional of Record shall be of at least equal competence as the prior Design Professional of Record. In the event that City and Design Build Entity cannot agree as to the substitution of a new Design Professional of Record, the City shall be entitled to terminate this Contract as described in the General Conditions. 10. Indemnif cation. To the fullest extent allowed by law, Design Build Entity agrees to protect, save, defend and hold harmless, to the greatest extent provided by law, the City, its governing council and each member thereof, their officers, agents and employees from any and all claims, liabilities, reasonable expenses or damages of any nature, including reasonable attorney's fees, for injury or death of any person, or damage to property, or interference with the use of property arising out of the negligent acts, errors or omission, or willful misconduct by the Design Build Entity, the Design Build Entity's agents, officers, employees, sub - consultants, or independent consultants hired by the Design Build Entity to provide services pursuant to this Contract. The only exception to the Design Build Entity's responsibility to protect, save, defend and hold harmless the City, is where a claim, liability, expense or damage occurs due to the sole negligence, willful misconduct or active negligence of the City. This hold harmless provision shall apply to all liability, as provided for above, regardless of whether any insurance policies are 24347.00600%7801407.1 - 4 - DESIGN -BUILD CONTRACT applicable. Insurance policy limits do not act as a limitation upon the amount of the indemnification to be provided by the Design Build Entity. Notwithstanding the foregoing, to the extent Design -Build Entity's Scope of Work is subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Design -Build Entity. In claims against any person or entity indemnified under this provision, that are made by an employee of the Design Build Entity or any Subcontractor, a person indirectly employed by the Design Build Entity or any Subcontractor, or anyone for whose acts the Design Build Entity or any Subcontractor may be liable, the indemnification obligation under this provision shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for Design Build Entity or any Subcontractor under workers' compensation acts, disability benefit acts, or other employee benefit acts or any other insurance limitations. The indemnification obligations under this provision shall not be limited by any assertion or finding that the person or entity indemnified is liable by reason of a non delegable duty. Joint and Several Liability shall apply to the Design Build Entity. In the event the Design Build Entity and one or more than one other party is connected with an accident or occurrence covered by this indemnification, then all such parties shall be jointly and severally responsible to each of the Indemnitees for indemnification, and the ultimate responsibility among such indemnifying parties for the loss and expense of any such indemnification shall be resolved without jeopardy to any indemnitee listed herein. 11. The Design Build Entity's Labor Certification. The Design Build Entity maintains that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for Worker's Compensation or to undertake self- insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of all work described in the Scope of Work for the Project. A certification form for this purpose is Attachment 10 to this Contract and incorporated herein by reference, and shall be executed simultaneously with this Contract. 12. Successors. essors. The parties do for themselves, their heirs, executors, administrators, successors, and assigns agree to the fall performance of all of the provisions contained in this Contract. The Design Build Entity may not either voluntarily or by action of law, assign any obligation assumed by the Design Build Entity hereunder without the prior written consent of the City. 13. Notices. All notices hereunder and communications regarding interpretation of the terms of the Contract or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows: 24347.0060017801407.1 - 5 - DESIGN -BUILD CONTRACT To City.. City of Arcadia Development Services Department 240 West Huntington Drive Arcadia CA 91007 Attn: Tom Tait, Public Works Services Director To Design Build Entity: TKE Construction, Inc. 2305 Chicago Avenue Riverside, CA. 92507 Attn: Shawn Ryan, Principal Any notice so given shall be considered received by the other party three (3) days after deposit in the U.S. Mail, first class postage prepaid, addressed to the party at the above address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 14. Attachments. All Attachments referenced in this Contract are incorporated into the Contract by this reference. 15. Amendments Changes and Modifications. This Contract may not be amended, changed, modified, altered or terminated without the written agreement of both Parties hereto. 16. Execution in Counterparts. This Contract may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 17. Applicable Law. This Contract shall be governed by and construed in accordance with the laws of the State of California, and venue in the County of Los Angeles. 18. Captions. The captions or headings in this Contract are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Contract. 19. Prior Agreements. This Contract contains all of the agreements of the Parties hereto with respect to any matter covered or mentioned in this Contract and no prior agreements or understanding pertaining to any such matter shall be effective for any purpose. 20. Further Assurances. Parties shall promptly execute and deliver all documents and instruments reasonably requested to give effect to the provisions of this Contract. 21. Recitals Incorporated. The Recitals set forth at the beginning of this Contract are hereby incorporated into its terms and provisions by this reference. 22. Time of the Essence. Time is of the essence with respect to each of the terms, covenants, and conditions of this Contract. 23. Authority of Signatories. The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties. 24347.ao600%7801407.1 - 6 - DESIGN -BUILD CONTRACT IN WITNESS WHEREOF, the Parties have caused this Contract to be executed by their respective officers who are duly authorized, as of the Effective Date set forth above. TKE CONSTRUCTION, INC. By: Name Title By: Name Title Tax J.D. Number: Number Contractor's License: Number X76- 8 b z Class CITY OF ARCADIA By: Domin�Lazziar�Manager Date Attest: By; 4Cile, Approved as to Form: t By. 944--:�V� P. ba" Stephen P. Deitsch, City Attorney 2434T006M7801407_1 - 7 - DESIGN -BUILD CONTRACT ATTACHMENT 1 HOURLY RATE SCHEDULE FOR EXTRA WORK See attached 24347.00600\7801407.1 - 8 - HOURLY RATE SCHEDULE FOR EXTRA WORK TKE RATE SCHEDULE 2012 -2013 Project Manager/ Licensed Surveyor ............................ ............................... Senior Engineer /Project Engineer (PE) /Architect/Landscape Architect/ Senior Plan Checker ................................................... ............................... Associate Engineer /Architect/Landscape Architect ....... ............................... Assistant Engineer /Architect/Landscape Architect/Plan Checker .................. AutoCADTechnician .................................................. ............................... Engineering Technician .............................................. ............................... Clerical.................. .................................................. ............................... Forensic Engineering .................................................. ............................... Expert Witness Testimony ......................................... ............................... SURVEYING SERVICES 2 -Man Survey Crew (Standard Wage) ...................... ............................... 2 -Man Survey Crew (Prevailing Wage) ..................... ............................... CONSTRUCTION SERVICES ConstructionManager ................................................ ............................... ProjectManager ........................................................ ............................... ProjectEngineer ....................................................... ............................... Project Superintendent .............................................. ............................... Construction Observation .......................................... ............................... Construction Inspector (Standard Wage) .................... ............................... Construction Inspector (Prevailing Wage) .................... ............................... Car/Truck for Construction Services Personnel ........... ............................... REIMBURSABLE COSTS HOURLY RATE $130.00 $110.00 $100.00 $ 90.00 $ 90.00 $ 50.00 $ 55.00 $150.00 $250.00 $190.00 $210.00 $120.00 $100.00 $ 80.00 $ 80.00 $ 85.00 $ 85.00 $ 95.00 $ 60.00 /Day In -house Reproduction .............................................. ............................... Cost Printing and Materials ................................................ ............................... Cost + 10% Express Mail /Courier /Next Day Service ....................... ............................... Cost + 10% Special Subconsultant Services ................................. ............................... Cost + 10% Revised Jan 2012 FINAL C0NTR,��CT AMOL!NT3 x"41`''., EXCEED THE ORIGINAL CO�FrP. -ACaT AMOUNT WILL RE CFP�RGE D Ate, ADDITIONAL PREMIUh,I. INCOIDE THESE. PREN71U1%1 CHARGES IN YOUR CHANGE ORDERS. ATTACHMENT 2 PERFORMANCE BOND KNOW ALL PERSONS BY THESE PRESENTS: Executed in Duplicate Bond No. P131 1509600839 THAT WHEREAS, the City of Arcadia (hereinafter referred to as "City ") has awarded to TKE CONSTRUCTION, INC., (hereinafter referred to as the "Contractor ") an agreement for MUSEUM EDUCATION CENTER DESIGN /BUILD PROJECT (hereinafter referred to as the "Project"). WHEREAS, the work to be performed by the Contractor is more particularly set forth in the Contract Documents for the Project dated �& 2013, (hereinafter referred to as "Contract Documents "), the terms and conditions of whi h arc expressly incorporated herein by reference; and WHEREAS, the Contractor is required by said Contract Documents to perform the terms thereof and to furnish a bond for the faithful performance of said Contract Documents. NOW, THEREFORE, we, TKE CONSTRUCTION ANC., the undersigned Contractor and Philadelphia IndernnRy Insurance Company as Surety, a corporation organized and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto the City in the sum of Seven Hundred Ninety -Seven Thousand Five Hundred Ei ht -One DOLLARS and 001100 CENTS ($ 797,581.00 _), said sum being not less than one hundred percent (100 %) of the total amount of the Contract, for which amount well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, that, if the Contractor, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions and agreements in the Contract Documents and any alteration thereof made as therein provided, on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their intent and meaning; and shall faithfully fulfill all obligations including, if provided as part of the Contract Documents, the one -year guarantee of all materials and workmanship; and shall indemnify and save harmless the City, its officers and agents, as stipulated in said Contract Documents, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect. As a condition precedent to the satisfactory completion of the Contract Documents, unless otherwise provided for in the Contract Documents, the above described guarantee obligation shall hold good for a period of one (1) year after the acceptance of the work by City, during which time Contractor shall make full, complete, and satisfactory repair and replacements and totally protect the City from loss or damage resulting from or caused by defective materials or faulty workmanship. I24347M600t7801407.1 - 9 - PERFORMANCE BOND In addition, the obligations of Surety hereunder shall continue so long as any obligation of Contractor remains under the Contract or at law. Nothing herein shall limit the District's rights or the Contractor or Surety's obligations under the Contract, law or equity, including, but not limited to, California Code of Civil Procedure section 337.15. Whenever Contractor shall be, and is declared by the City to be, in default under the Contract Documents, the Surety shall remedy the default pursuant to the Contract Documents, or shall promptly, at the City's option: (1) Take over and complete the Project in accordance with all terms and conditions in the Contract Documents; or (2) Obtain a bid or bids for completing the Project in accordance with all terms and conditions in the Contract Documents and upon determination by Surety of the lowest responsive and responsible bidder, arrange for a contract between such bidder, the Surety and the City, and make available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price" as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract Documents and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. (3) Permit the City to complete the Project in any manner consistent with California law and mare available as work progresses sufficient funds to pay the cost of completion of the Project, less the balance of the contract price, including other costs and damages for which Surety may be liable. The term "balance of the contract price " as used in this paragraph shall mean the total amount payable to Contractor by the City under the Contract Documents and any modification thereto, less any amount previously paid by the City to the Contractor and any other set offs pursuant to the Contract Documents. Surety expressly agrees that the City may reject any contractor or subcontractor which may be proposed by Surety in fulfillment of its obligations in the event of default by the Contractor. Surety shall not utilize Contractor in completing the Project nor shall Surety accept a bid from Contractor for completion of the Project if the City, when declaring the Contractor in default, notifies Surety of the City's objection to Contractor's further participation in the completion of the Project. The Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project to be performed thereunder shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract Documents or to the Project and the provisions of Section 2819 and 2845 of the California Civil Code. Without limiting the foregoing, such changes, extensions of time and alterations or additions shall include, but are not limited to, changes or alterations to the Contract Documents (including, 24347.00600N7801407,1 - to - PERFORMANCE BOND without limitation, an increase in the total dollar amount of the Contract Documents), extensions of time, or modifications of the time, terms, or conditions of payment to the Contractor. IN WITNESS WHEREOF, we have hereunto set our hands and seals this 30th day of July o 20 13 CONTRACTOR/PRINCIPAL (Corporate Seal of Contractor/ Principal, if a Corporation) SURE, TV (Seal of Surety) TKE Construction Inc. Name of Contractor /Principal (Type or Print) Name (Signature) Shawn M. Ryan Name (Type or Print) President Title (Type or Print) Philadelphia Indemnity Insurance Company Name of Surety (Type or G Attorney -in -Fact The rate of premium on this bond is$25.00i$15.00/$10.0oper thousand. TP6 total amount of premium charges, $ 11,476.00 (The above must be filled in by corporate attorney.) THIS IS A REQUIRED FORM Any claims under this bond may be addressed to: (Name and Address of Surety) Philadelphia Indemnity Insurance Company 231 St. Asaph's Rd., Suite 100 Bala Cynwyd, PA 19004 (Name and Address of Agent or CCI Surety, Inc. Representative for service of 1710 N. Douglas Dr., suite 110 process in California, if different Golden Valley, VIN 55422 from above) (Telephone number of Surety and Agent or Representative for service of process in California) Philadelphia Indemnity Insurance Company: (610) 617 -7900 CCI Surety, Inc.: 763 543 -6993 24347.00600%7801407.1 - 11 - PERFORMANCE BOND ACKNOWLEDGMENT Late of Califon ounty of Z before me, (insert name and title of the officer) ersonalty appeared rho proved to me on the basis of satisfac ory evidence to be theersori(;f whose name is 4bschbed to the within instrument and acknowledged to me tha h� y Wtheexecuted the same in r instrument the +s ��i d ap " einstrum nt erson' or the entity u p beh alf of which the p on j acted, executed th certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing nraarar)h is true and correct. CHRISTINA D. PHELPS SS my hand and official seal. p m scin # 1976300 California Riverside County N4 Comm. Expires A4; 26, 2018 NOTE: A copy of the Power -of- Attorney to local representatives of the bonding company must be attached hereto. 24347.0060OW8014071 - I2 - PERFORMANCE BOND FINAL f7,O NTRACT ANIOUN = I -i EXCEED THE ORi0NAL AIViOUN € WILL BE CHARGED AN ADDIT -NA! PRE.MIUhl. lNCL} DFF T1-11 SE PREMIUM CHARGES IN YOUR CHANGE ORDERS. PAYMENT (MATERIAL & LABOR) BOND ATTACHMENT 3 KNOW ALL MEN BY THESE PRESENTS That Executed in Duplicate Bond No, PB11509600839 WHEREAS, the City of Arcadia (hereinafter designated as the "City "), by action taken or a resolution passed June 4, 2013, has awarded to TKE CONSTRUCTION, INC. hereinafter designated as the "Principal," a contract for the work described as follows. MUSEUM EDUCATION CENTER DESIGN/BUILD PROJECT (the "project "); and WHEREAS, the work to be performed by th Principal is more particularly set forth in the Contract Documents for the Project dated Q 2013, (hereinafter referred to as "Contract Documents "), the terms and conditions of whi fire expressly incorporated herein by reference; and WHEREAS, said Principal is required to furnish a bond in connection with said Contract Documents; providing that if said Principal or any of its Subcontractors shall fail to pay for any materials, provisions, provender, equipment, or other supplies used in, upon, for or about the performance of the work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of said Principal and its Subcontractors with respect to such work or labor, the Surety on this bond will pay for the same to the extent hereinafter set forth. NOW THEREFORE, we, the Principal and Philadelphia Indemnity Insurance Company as Surety, are held and firmly bound unto the City in the penal Sum of Seven Hundred Ninety -Seven Thousand Five Hundred Eighty -One DOLLARS and 00/100 CENTS ($797,581.00 ) lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if said Principal, his or its subcontractors, heirs, executors, administrators, successors or assigns, shall fail to pay any of the persons named in Section 9100 of the Civil Code, fail to pay for any materials, provisions or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract Documents, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department or Franchise Tax Board from the wages of employees of the contractor and his subcontractors pursuant to Section 18663 of the Revenue and Taxation Code, with respect to such work and labor the Surety or Sureties will pay for the same, in an amount not exceeding the sum herein above specified, and also, in case suit is brought upon this bond, all litigation expenses incurred by the City in such suit, including reasonable attorneys' fees, court costs, expert witness fees and investigation expenses. 24347 , 00600\7801407.1 -13 - PAYMENT (MATERIAL & LABOR) BOND This bond shall inure to the benefit of any of the persons named in Section 9100 of the Civil Code so as to give a right of action to such persons or their assigns in any suit brought upon this bond. It is further stipulated and agreed that the Surety on this bond shall not be exonerated or released from the obligation of this bond by any change, extension of time for performance, addition, alteration or modification in, to, or of any contract (including the Contract Documents), plans, specifications, or agreement pertaining or relating to any scheme or work of improvement herein above described, or pertaining or relating to the furnishing of labor, materials, or equipment therefore, nor by any change or modification of any terms of payment or extension of the time for any payment pertaining or relating to any scheme or work of improvement herein above described, nor by any rescission or attempted rescission or attempted rescission of the Contract Documents, agreement or bond, nor by any conditions precedent or subsequent in the bond attempting to limit the right of recovery of claimants otherwise entitled to recover under any such contract or agreement or under the bond, nor by any fraud practiced by any person other than the claimant seeking to recover on the bond and that this bond be construed most strongly against the Surety and in favor of all persons for whose benefit such bond is given, and under no circumstances shall Surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the owner or City and original contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Section 9100 of the Civil Code, and has not been paid the full amount of his claim and that Surety does hereby waive notice of any such change, extension of time, addition, alteration or modification herein mentioned. Notwithstanding any other provision of this bond, it is expressly understood, acknowledged and agreed that it shall provide all of the protections required by California Civil Code Sections 9550 through 9566, including the specific coverage protections required by Section 9554. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK SIGNATURES ON FOLLOWING PAGE] 24347,0060017801407. 1 -14- PAYMENT (MA'T'ERIAL & LABOR) BOND rN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety above named, on the 30th day of July 2013 the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body. CONTRACTORIPRINCIPAL (Corporate Seal of Contractor/ TKE Construction Inc. Principal, if a Corporation) Name of Contractor /Principal (Type or Print) [ : �.��.. ! Name (Signature) ,4 Shawn M. Ryan Name (Type or Print) President Title (Type or Print) SURETY (Seal of Surety) Philadelphia Indemnity Insurance Name of Surety ,c S Crawford, Attorney -in -Fact 0 2a347.00600W801407.1 - 15 - PAYMENT (MATERIAL & LABOR) BOND ACKNOWLEDGMENT of Califor 'a lv of_ _ M�� n `, '-��J before me,�(�k� (insert name and title of the officer) )pally appeared N t y 1 I N Jl� t proved to me on the basis of satisfacto evidence to be the��persori whose names i � cribed to the within instrument and acknowled ed to me thair 9s� _" executed the same in erAheir authorized capacity0@%), and that b >Wihe.rMeir signature(s),on the instrument the )n *j, or the entity upon behalf of which the person�*y acted, executed the instrument. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing iaragrai)h is true and correct. TNESS my hand and official seal. CHRISTINA D_ Com Wasion # 197680D Notary Polk • Caiitornis Rivers* County Comm. E raa AV 26, 2016 nature�)OS , ' (Seal) NOTE: A copy of the Power -of- Attorney to local representatives of the bonding company must be attached hereto. 24347,0060017801407.1 - 16 - PAYMENT (MATERIAL & LABOR) BOND ATTACHMENT d WORKERS COMPENSATION CERTIFICATION ode section 3700 in relevant part provides: 'very employer except the State shall secure the payment of compensation in one or the following ways: a) By being insured against liability to pay compensation in one or more insurers duly M to write compensation insurance in this State. b) By securing from the Director of Industrial Relations a certificate of consent to self insure, which may I- given upon furnishing proof satisfactory to the Director of Industrial Relations of ability to self-insure and to pay any compensation that may become due to his employees. I azn 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 I will comply with such provisions before commencing the performance of the work of this contract. NAME OF DESIGN BUILD ENTITY: In accordance with Article 5 (commencing at section 1860), chapter 1, part 7, division 2 of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any work under this contract. 24347.00600%7E01407.1 - 17 - WORKERS COMPENSATION CERTIFICATION TITLE::. DATE: In accordance with Article 5 (commencing at section 1860), chapter 1, part 7, division 2 of the Labor Code, the above certificate must be signed and filed with the awarding body prior to performing any work under this contract. 24347.00600%7E01407.1 - 17 - WORKERS COMPENSATION CERTIFICATION 1386 * *� SBA ** *SBA * ** SEA * ** SBA * ** SBA ** *SBA ** *SBA ** *SBA ** *SBA ** *SBA * ** PHILADELPHIA INDEMNITY INSURANCE COMPANY 231 St. Asaph's Rd., Suite 100 Bala Cynwyd, PA 19004 -0950 Power of Attorney KNOW ALL PERSONS BY THESE PRESENTS: that PHILADELPHIA INDEMNITY INSURANCE COMPANY (the Company), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, does hereby constitute and appoint; Michael Williams, Jeremy Crawford, William L Nemec, Andrea J. Michael & Tanya Fukushima of C *C *I Surety, Inc. a Minnesota Corporation. Its true and lawful Attorney(s) in fact with full authority to execute on its behalf bonds, undertakings, recognizances and other contracts of indemnity and writings obligatory in the nature thereof, issued in the course of its business and to bind the Company thereby, in an amount not to exceed $2,500,000.00 This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of PHILADELPHIA INDEMNITY INSURANCE COMPANY at a meeting duly called the I" day of July, 2011. RESOLVED: That the Board of Directors hereby authorizes the President or any Vice President of the Company to: (1) Appoint Attorney(s) in Fact and authorize the Attorney(s) in Fact to execute on behalf of the Company bonds and undertakings, contracts of indemnity and other writings obligatory in the nature thereof and to attach the seal of the Company thereto; and (2) to remove, at any time, any such Attorney-in-Fact and revoke the authority given. And, be it FURTHER RESOLVED: That the signatures of such officers and the seal of the Company may be affixed to any such Power of Attorney or certificate relating thereto by facsimile, and any such Power of Attorney so executed and certified by facsimile signatures and facsimile seal shall be valid and biding upon the Company in the future with the respect to any bond or undertaking to which it is attached. IN TESTIMONY WHEREOF, PHILADELPHIA INDEMNITY INSURANCE COMPANY HAS CAUSED THIS INSTRUMENT TO BE SIGNED AND ITS CORPORATE SEALTO BE AFFIXED BY ITS AUTHORIZED OFFICE THIS 7TH DAY OF FEBRUARY 2013. c',, (Seal) " eb-�,�Clg Robert D. O'Leary Jr., President & CEO Philadelphia Indemnity Insurance Company On this lei day of February 2013, before me came the individual who executed the preceding instrument, to me personally known, and being by me duly sworn said that he is the therein described and authorized officer of the PHILADELPHIA INDEMNITY INSURANCE COMPANY; that the seal affixed to said instrument is the Corporate seal of said Company; that the said Corporate Seal and his signature were duly affixed. rrxkm"LV ANIA NOTARtALSEAL DANELLE RDRATH, HataryPublc [my Low lferw _.!_4hefp�neryCOU� b� Canauiesion it2T,20ttl Notary Public residing at: Bala Cynwyd PA (Notary Seal) My commission cxpires: March 22, 2016 I, Craig P. Keller, Executive Vice President, Chief Financial Officer and Secretary of PHILADELPHIA INDEMNITY INSURANCE COMPANY, do herby certify that the foregoing resolution of the Board of Directors and this Power of Attorney issued pursuant thereto are true and correct and are still in full force and effect. I do further certify that Robert D. O'Leary Jr., who executed the Power of Attorney as President, was on the date of execution of the attached Power of Attorney the duly elected President of PHILADELPHIA INDEMNITY INSURANCE COMPANY, r In Testimony Whereof I have subscribed my name and affixed the facsimile seal of each Company this 3eday of f 20 . Craig P. Keller, Executive Vice President, Chief Financial Officer & Secretary PHILADELPHIA INDEMNITY INSURANCE COMPANY 1927 .1 `r Acknowledgment of Surety State of Minnesota County of Hennepin On this 30th day of July 2013 before me personally appeared Jeremy Crawford who acknowledged that he or she is the attorney in fact who is authorized to sign on behalf of Philadel hia Indemnity Insurance Com an (surety company), the foregoing instrument, and he thereupon duly acknowledged to me that he executed the same. Nota ublic �,:w,;2_r„�.'V• ✓',Y ... „✓�.r'v ,. ^, :,. M?:°vuu�V ✓'v fu'+.'+r,✓�R t �Sk" ikv ^r,mmisFt[)il ξires in 3 , 2015 w.vx- �,,�nl�nrrrr+.�wv+r •,rv���.�nr