RECEIVED DPW - San Jose...substitution 0f Green .Growth Industries ("GGI~’) on the Happy Hollow...

May. 5~ 2009

Attachment A250 Bel Matin Keys Blvd.BuiIding ANoVat0, CA 94.949Phone: (415) 456~8972Fax: (4!5) 459-0665General ContractorLicenSe Number 626859

VIA FACSIMILE AND REGULAR MAIL - 408-292;6288

Katy Jen~enCity of San Jose: Department of Public Works2001E. Santa Clara Street, 6m FloorSan Jose, CA 95113

Re: Happy Hollow Park and Zoo

Dear Mrs. Jensen:

In accordance with Public Co tract Code {}4107(a)(1)(3)(4) and §4!08(a) and (b)~.West Bay Builders, Inc. hereby requests the substitution of the listed Green Grm~hIndustries with Jensen Corporation for the landscaping, irrigation and green roof work,Green Growth Industries has refused to procure a requested bond at our expense andenter into a written contract with the aforementioned language,

3ensen. Corporation’s information is as followS:.

LiCense No.Address:

Telephone:Facsimile:

2595401983 Concourse DriveSan Jose, CA 95131408~446-1118408-446-4881

If you have any further questions or concerns, please do not hesitate to contact meatany time.

~~ectfully

~,.ton FraserC~ ef Estimator

co: Paul Thompson, Catherine Stock

RECEIVED

DPW.CFAS

Attachment B

VIA CERTIFIED MAIL & BY FAX

May 8. 2009

Mr. Glenn ROckCity of Shn Jose200 E. Santa Clara St.. 6tT! FloorSan .lose. CA 95t 13

RE: Happy Hollow Park & Zoo-Zoo anti Attractions

Dear Mr. Rockl

We arein receipt of your letter of May 7"’; 2009 regarding West Bay Builders" request tOsubstitute our company for the landscaping, irrigation and green, roof work of the abovereferenced pi~0ject. Green Growth InduStries does hereby objecl m this substilution.

West Bay Builders" invitation to bid thxed to our office on July 20t~’~ 2007, fa!ted to indicatebonding requirements per Public Cbntract Code 4108 (c). hwitation to bid attached: Our bid forthis project to West Bay Builders M~ich was used in tisting our co~npany specifically excludedbonding. We expected West Bay Builders wanted Green Growth on their project team knowingwe have been successful with West Bay Builders on all of the i 0 plus prqieets prior to this

After receipt of the contract we were contacled by West Bay Bufldei’s notifying us tlmt |hey wereno~v requiring us to provide bonding fbr this project. Green Growth objected to their reqnesl forbonding knowing that~ per contract code 4! 08, we were not required to bond. Moreover, GreenGrowth had previously deleted bonding clauses in West Bay Builders’ standard contract and tiledeletions have always been accepted. Green Growth does not tel’use to enter into a contract withWest Bay Builders. We. are simply requesth~g t.he contract reflect our bid whict5 must be honored.In summary, (1) the contract we receiVed li~om West Bay Builders is acceptable except for theaddcd verbiage for bonding. The bonding was specifically e~cluded at bid time and accepted asuse in listing Green. Growth fbr this project (2)We:marked up the bonding portion of thecontract, as We have done in our Course of dealings with West Bay on everycontract we havepreviously entered into with them, and (.3) we rcturnedthe ~ignedexecuted original back to WestBay Builders: We also sent with the contract a transmittal requesting West Bay Builders c~mtactus upon receipt ot’the contract to discuss the marked tip portions, West Bay. Builders has yet toidentify ariy facts establishing that they have complied with the bonding not:ice requirements.

! have attached a copy of the letter that was sent to West Bay on M~y 5"r2009 in response to theletter we received f?om West Bay Btiflders inlbrming us of their substitution request which statesour& the desire to verbiage meet in the withthem conlracLin order to. resolve our disagreeinent with tlieir rcquest fbr bo~nOd~il~ ~ i V~ ~[�~ ~(,f

DPW-CFAS

Attachment ’B’

May 8; 2009

Green Growth has already c0mmitl:ed resources Completing portions of the projecl and hassecured materials tb~, upcoming work. We have in nO way affected the progress of this prqiectdue to this dispute with West Bay, We are tlope[’ul that West Bay Builders will meet with us todiscuss and re’s61ve these diSagreel~ents before fi~r~her action is required bythe city of San .lose.

Please contact me il’you hax~e any questions on my cell at (925) 382-0668 or our olTice number(925) 484-0830 exl 108.

Respect fu fly,

Roger EckliolmPreSidentGreen GroWth lndustries~ |nc:

~.C, Claytt~n Fraser, PaulTh6~psonOf West Bay B~ilders

Attachment ’B’

To: Green .Growth Industries

Attn: Roger/Estimating

From! Estimator:. Cla~on FraSer Date’,

925-484-0937

7120/2007

Re:

/ ctaytonf~,westbaybuilders,com ’

Happy Hollow Pa~ & Zoo -Pages:Attractions Package

x Urgent:= .x For Review x Please Comment: x Please Rep~J

West Bay Builders, Inc. is b|dding a~a ~ne~l Oo~r on ~% Happy HollowPark & Zoo A~e~ons Package for the Ci~ of :San Jose and ~ ~Re ~i~ youto b~ on ~ p~st ~t ~ll for ~is p~ ~e valued es~m~ ~r~is pmj~ is $~0~,000 and ~e bid da~ ~ ~ul~ ~r ~umday, August2"~ @ 3pm. Our p~ number is (41~ 4~972 and our ~ num~r ~ (4t5)45~5, ~ank you[ @

Attachment ’B’

May 5; 2009

West Bay.B!iiMers250. Bel Marh~. Keys Blvd, Bldg AN0vato, CA 94949Attention: C|ayt.on:Frasier

RE:Happy Hollow Park’& Zoo

Clayton,

I am it1 receipt of your letter.regai’dingWest Bay Builders’ fiatent tO request a substitUtion.groan the City of San/os~ f0tour portion of Work,

1 Would hope that prior to thiS:letter being sent tb th~ city that We could meet and try toresolveeta" disagreements in regar~ tO tile subcontract and bpnding,

AS yo~ kimw West Bay Builders and Gr~n Growtlt tndush-ieS have ~ucc~ssthlly Completed manyprojects together over the last Severat years. (29nsiderhag this there;sti0uld be more loyaltybetween us to. resolve issues between our companies;

When you rcNtieSted a bond-from us on this project i itff0rmed you il~at we were.rel~ctant to tieup ot~r bond!.ng Capacity on ~ubconti’~cte~l-~x’0rk~ knowing that.we.need this capacity for primeprojects we are pursulng. I also ~lid not a~ee Withtl~s re;qUest Considering out- proven historyWith West Bay and the factthat there was no. eonmaunicatiOn 0f bonding being a requirement atbid time,

West Bay Builders as the prim~contrae[~r’is requlred i0 specify b0M requirements prior t~ bidtime pu~uant to sa~ti0n 4108 of the pub:ilc, c_ontia~t code~ If We had l~een not!fiCxt ofrequirement for bonding asa Subcontraeto) dais wot~id liave given us tiae opp0~uaity to weigh outour options of whether or not to bid on flits proj(et at that time~

Green Growth hldustries is fully capable of completing this project successful.!y and has giyen.... ’~ " " "e We have the finances,West Bay no reason tbr concern withl;espcct to Green Growtll s ab~H~i s,

man power and equipment ready to go,

Please contact meas .soon as possible so we can meet and resolve this issue,

R:espectfu!ly,

Roger Eckholn~

CC: P~ul Thompson~ Catherine Stock, bi.sa Eckhohn

, Attachment ’B’

Timothy L. McInerney.

LAW OFF’ICES ’

_i~MNERNEy & DILLONPROFESSIONAL C~RPORATIO N

199~} HXR’RISbN "STREET . SUITE

OAKLAND, CALIFORNIA 94612-4700T.ELEPHONE (S I0) 465-7 I00

t!m@meinerney-dillon,com

.May14,2009

Glenn t oekCity of San Jose Department of Publ!e Works200 E. Santa Clara St., 6taFloor.San. Jose~ California 95113

Via Fax: (408) 292-6288 &E-mail

RE: West Bay Builders, Ine.’s Request for SubstitutionHappy Hollow Park & Zoo Project¯

Dear Mr. Rock:

I. represent WestBay Builders, inc. ("West Bay") with regards to West Bay’s regi.uest for.substitution 0f Green .Growth Industries ("GGI~’) on the Happy Hollow Park & ZOO. project.

West Bay rdquested substitution because GGI refused to execute a subcontract cotisistent withthe project specifications and to provide performance and payment bonds as promised.

Ptirsuant to Public. Contract Code .§4107(a)(1), .a prime contractor may substitute asubcontractor who fails or refuses to execute a written coi~tract based upon the ge~teral terms,cbnditi0ns, plans, and specifications for the project invo!sred. On December 7, 2007,.West Baysent GGI its standard subcontract along with instructions not to alter the.Subeontract withoutdiscussing anypropo~ed ch~inges with We.s.t Bay first. Over 16 months later and afternumerouscalls and emails from West Bay, .GGI returned the Subcontract with several material changes toits content (see attached). Wes~ Bay carmot accept these changes.

GGI deleted general terms of the subcontract that were consistent with the Ci!y’s projectspe~iflcations. Specifically, GGI changed the payment Schedule to contradict the City’s paymentschedule to West Bay (see ~eetion 1290 of the project specifications and section 9 of the City ofSan Jose’s standard provisions)£ GG~demanded payment e~(ery 30 days regardless of the City’swithholds to West Bay. GGt modified the terms tO require payment in full, incIuding retention,upon "final inspection’? of GGI~s work. These changes materially alter the City’s standardprovisions and public contract law.

Attachment ’C’

GGI also altered critical insurance requirements and limits provided for in thesubcontract. West Bay’s subcontract required a subcontractor to carry General LiabilityInsurance not less than $2,000,000 for each occurrence and not less than $8,000,000 in theaggregate. These limits were less than.the City requirements of $5,000,000 and $10,000,000respectively. This protection is essential for West Bayas well as the City. GGI deleted theminimum coverage requirement in its entirety. GGI also modified requirements noted forCommercial General Liability insurance to simply state "GGI will furnish the followinginsurance" without amounts. GGI’s refusal to accept the subcontract as provided entitles WestBay to a substitution for this scope of work under §4107(a)(1).

Further, pursuant to Public Contract Code §4107(a)(4), a prime contractor may substitutea subcontractor who fails or refuses to meet the bond requirements of the prime contractor. Thesubcontract provided to GGI in 2007 required GGI to execute a bond, either concurrent with theexecution of the contract, or at any time during performance. West Bay immediately informedGGI that two bonds would be required because of the significant liquidated damages. Initially,GGI stated it would contact its agent regarding a bond but waited over 16 months to notify WestBay that it would not provide the bond. When finally returning the subcontract to West Bay,GGI deleted this pol~ion of the subcontract in its entirety.

GGI’s refusal to provide a bond further entitles West Bay to subititute out GGI on Nisproject. Due to the critical nature of GGI’s work, West Bay requests the City expedite thesubstitution hearing to avoid any delay to completion of the project.

Very truly yours,

McINERNEY & DILLON, P.C.

Timothy L. McInemey

co: Katy Jensen, City of San Jose Department of Public WorksClayton Fraser, West Bay Builders, Inc.Roger Eckholm, Green Growth Industries, Inc.

Attachment ’C’

Attachment. C

Subcontract Agreement

250 ~el ~.~n Key..s Blv~d;BalldingANo¢ato, cA 94949 "Phone: (41.5) 45628972~ax;. :(415) 459-0665.G~netal. Contr.aetorLicense Nmnher. 626859

Attachment ’C’

.Attachment C

Off.haUl .Or debris .or spoilsD, em/o work.¯Electrical work " -<

" .W,.at~..d~tg .an.diet maintenanc~ of exi~ing la~d~pe dudngconswu~ion ~..

Con�~ work ,

Tme.p~te~ion ¯ ~

Tm~ r~O~a~"] L~ansp!Snt (eX~p= pa!m trees) "C~t=hg~:bori~g,ddl!i~g~ ~U~ing, gb[chi~g, digg!,g through or hauling.

Erosion control

o~ina~e ~ ~-+ ~ .....Clearing.and g~bbing + .+ -.i~a+l+dW~odland planting and i+rig~Bon

-~ Attachment ’C’

Rough g~’ading (grade is to be received by SUBCONTRACTOR a -1/10 offinish g~ad~e.and sio~ed to drain)Su~eying,.behch marks~ radius ~ih~ . ~.) 0.~

Copper pipe ins~l~ati~n and/O~epalrRepair ~f.land~peand i~HgaUon damag~d bY othe~ ~Wate~featu~DHnking foun~ins ~ " -

. SECr~ON 6;2-- CLAR~F~CATZONS ". .¯ Pri~e of $22;411- a¢.eepted for’F & I of Section.02505¯ Pr|dlng bf~$104~l!2.a~cepted for i~ & I of items A, Be :C~ G, H~ I and J in Section 02870¯ Pricing o~. ~lBT:,737a¢¢~pted for Pi&:l.of Greenro0fPlanting, lightweight soil and

. itrigatio~ per Section 07140

Attachment ’C’

I~, SpeCia! ,:claims i~lade.~ and. "Modified OccurrenCe’; ;Policy’. Form Pi’ovlsions; sUBCONTRACI~.OI~:shalF.not provld._eGehet’al Uabilib/InSurance. under a"clain~s Nade" and "Nod ~ed .Occutren~:e’~ .�~mm~ri=lal ~3ene~l Liabil ~ f0rtrl,

C,, A~lditional insured, With t’esl~ect to whicheyer Gel~er~l Uabilib/p.o..cy f.qrm is rum. ~he.d as tequ{red,ab0ve:1~ CONTRAC~I’OR, iLs Officers,.ditec~o~ and employees ~..nil OWNER and i_ts. employe~s: and o..th...er pa.r~ies

as Pe.q~ired by ¢oi~tta~:i and the Archit.~. sh~JJ I~e natried, a~ a~lditionai ih~lred", Th~ P~o~li~c~=.

p#6dUcts- .-~ml~leted O~brattons cov~yage’,ndusl~e of additldnal insured pro_v.isiods!in eli futu~ .renewals of’

’ "2, The poll~ ¯Shall. be en...dg~’sed to"sti~ulate that the !n.s~rance affo~e.d, the ad.~iti~nal Lnsured shall app!.y as

. only and, sha|l"n,~tba called upon td contff~Ub~ ~ith SUl~_C~JNTRACTORS.i.rlsura.nce; .. " ’".

’ an~d ether [~a~tl~s a~ .r.e, qu~t~d by contact as ~ddit].’onal r~sured Sh~II be provided by a p~licy provision 5r byan end.ors~.ment providihg c6yerage a~ I.eas~ a~ broad as AddiU~r~al ~n~ured (F~rrd B) Endor.sement;:FormCG20~O (~.:L1/85) or ~eq~ valenbas pub Isled by the Ihs!~rOhce SetVi .¢e.s Ofi~e.-~ISO)= . .

AUtOrnoblle Liabiiikv Insurance SUBCONTRACEOR Shall c.aL~n~.a~tomobile liab!l!~ l~st!ranc.~ ih~[u~ling-.¢oVei~age f~ allowned, hired and ¯¯Oo6~o~ed¯au~omObi)e~ T!~&" li~|~ 6t: l[abii b/. She I n~t b~ lbss.than ~i,OO0,O~b: CO~ibin~d Single

¯ Limit.ea~ Lccldent’ fc~r Bodily I~ure and Property. Damage.combined, .. " " .

AIPcraft Iiisuranc~ If the ~UBCONTRA.G’Tt~R Or.the!r Iowe. r!tI~F¯~ubc~.n..~,a~qr.s.::U.se. ~ny ~Wped, le.as.ed~ cha~te,.re, d.,,.or. hi’re~F.al~t.ra~:¢f~..any ~ype .(.including. helI~pters).i~, the’ performance ’o.~-this contract,they snail ~naimaln.aircra~t

r~su~ance in .ah am~dnt of not Jess than $SLd(~O,O00, ,per Occurrence. includ[ng Pa~s~hgei~ UabiiiW.. ’.Evidence dr.coverage in. the. fornl of a C~fi~ate ~F.I,hSu~’anc.~ Including addi~dn.al insured .statuS, as~ rehutred by’f]1~ generalcsvePage, sh~ll be provided iJdar 1~ the .start ~Jf w.o.r~ t~ ~:ONTRA..~OR, ¯ ’ " .

poller;ion Liabl ~v .If:~SUB.CO.NT., .P~..CqOP~ are requii’ed tQ’:l~erfdrm remedial h_az~rdous materiai opera~ions seth .asasbestO~, contai~ing .materla[~ .~O.n.ta~!.inated soil. etc,, the~ m~st~ In add!ti6t~ t~ the abSve requlrements, carry a

".(~6ntra~o~s P~l!~tlon ~al~itjb!"’POiicY With limi~s."~ot less than :~2,00QtOOO. per o~u’~.~nca and .h~t ’!~ss tha~$2i~oozbob, agg~:egBt~ for. B~d y inju6/~. P~P~onal Injury and Pi"Op~rtY Da~n~ige r~a~nidg CONTRA~q-OR and OWNER asan Bdditforial. jl:i~Jte-d Inddding\�-on~a .c~.. al liability Coverage. !I~SUBCONTR/~CI"OI~¯ or .their lower tier subcoi~ttact~rshaul hazardous wa~e they must;, carrY Automobile Llabilibi I~surance, wif~ a $2,0Q0,.00.~ con~!~i~!..e_d single Ii.mit pero~rmnce’fot Bodily -Injury and Pmpe~/Damage apP i~:abl..e t~ all hazardous waste Hauling vehi~l.es and Include

su~. a

Attaohment ’C’

SUBcoNTRACTOR ¯shall pr,oyide a certlrlCatlonof rialto, under penalhi of pei~ury in ¢onfo[m~nce with the Calli~orniaFalse¢iaims AS ~Governh~en~ Coa~ sect. ibn :~2~650 e~, Se.qt)

~..cqe. sso~,, administr~£c)l’s, and assignees on the day arid.~/e ar W b ~ .... .

¯Con~aCcor’s-St~e Ucense No, 6268,59 "

orpi~raf.lon []Pa..d;n. el’ship. [] Pmprielcorsliip. . ..... [] ~.~oraflon [] Partnership l--]Propde~orship.

N.o.te: Failure ~ execu~ anti return this contract, within thirty day~ shall be ~onsidered y6ur agreementperform the work on,the ~erms.stated h~teii~..

Attachment ’C’

OWNER aImpac~

¯, Attachment ’C’

notl~ ;~

E:2-

shal!

Attachment ’C’

awards, fines orj!

Attachment ’C’ "

Attachment ’C’

RECEIVED’

:1.!

Attachment ’C’

Attachment D

LAW OFFICES OF

H. PAUL BRYANT

901 CLAY STREET, OAKLAND, CALIFORNIA 94607 - TEL- (510) 272-0700 - FAX - (510) 272-0776

May 22, 2009

Attn: Glenn RockCity of San JoseCity Facilities Architectural Services Division200 East Santa Clara Street, 6th FloorSan Jose. CA 95113

Via fax: (408) 292-6288 and E-mail

RE: Happy Hollow Park & ZooJune 2, 2009 HearingWest Bay Builders Request to Replace Green Growth Industries, Inc.

Dear Mr. Rock:

I represent Green Growth Industries ("GGI") in connection with its efforts to secure, enforce andcontinue its contractual performance pursuant to the awarded contract with West Bay Builders("WBB").

The City of San Jose (The "City")is correct in noting that WBB may not replace the sub-contractor (as requested) unless:

(1) WBB presented GGI with a contract which is both (a) consistent with the projectspecifications and (b) the terms of GGI’s written bid proposal,

and

(2) GGI failed to execute a written contract after being given a reasonable opportunity todo so.

Since the failure to establish just one of these two elements should result in the denial of WBB’sreqiaest, WBB faces an impossible task because it cannot reasonably establish either requirementfor replacing GGI,

In addition to the foregoing, the Request to Replace GGI should be denied because:(1) WBB’s efforts to replace GGI for not providing a Bond is prohibited by Statute becauseWBB’s Invitations to Bid did not specify that a Bond would be required, (2) GGI has alreadyprovided labor and materials as requested and approved by WBB and (3) the verbal negotiationsand "mark-ups" by GGI were all done in effort to secure a contract which consistent with boththe landscaping project specifications and GGI’s written bid proposal.

Attachment ’D’

Glenn RockMay 22, 2009Page -2-

A. WBB Cannot Satisfy the Minimum Requirement for Replacing a Sub-Contractor

1. WBB Did Not Present GGI with a Contract Which is Both Consistent withthe Project Specifications and the Terms of GGI’s Written Bid Proposal.

The significant issue is, and has been, WBB’s request that GGI secure a bond. However, thisissue arose "after" the Bid was accepted.

The Invitation to Bid (Exhibit "A") which WBB faxed to GGI on July 20, 2008 does not requirethat GGI provide a Bond.

The Bid Proposal (Exhibit "B") GGI sent to WBB on Au.gust 9, 2007 specifically excludes ."Permits/Bonds," . "

The problem arose when WBB prepared a Contract which required that GGI provide a bond ifrequested. (See General Subcontract Provisions, paragraph "C" on page 7 of Exhibit "D’) GGIdid not.ignore the proposed contract, or its commitment to provide labor & material as per itsbid. GGI simply communicated it did not agree to.provide a bond and was not in a position to.secure a bond. WBB and GGI sent emails to each other (Exhibit "F"), but WBB failed torecognize that it had no right to demand a bond when it was not originally requested and hadbeen excluded in the Bid. Ironically, WBB’s demand for a Bond is inconsistent with theExclusions Section set forth in 6.1 of the Contract because "Permits/bond" are listed as beingexcluded in the 7th item of the section.

Accordingly, GGI was legally justified in refusing to sign a contract which WBB interpreted(based on General Subcontract Provisions, paragraph "C") as requiring ttiat GGI provide a Bond.

2. GGI Executed a Written Contract Which Appropriately Identified theContractual Obligations Created by WBB’s Acceptance of GGI’s Bid.

D.ue to the need to proceed with the project, and with Some hope WBB could solve its bondingproblem (in which WBB’s Bonding Company requires that 5 of its subcontractors provide a.Bond), WBB and GGI both elected to have GGI proceed with the work "without" either partysigning a contract. This "election" to proceed without a signed contract is easily established bythe many invoices (by GGI), change orders (by WBB) and the accepted modifications to theschedule of values modifying the price for the original scope of work (Exhibit C).

Ill 2009, after GGI provided a substantial amount of work, WBB re-raised the dormant problemof its requiring GGI to sign a contract which included terms which Were excluded in the Bid. Inan effort to provide a positive response, GGI corrected the problematic language (deletingGeneral Subcontract Provisions, paragraph "C") and sent a signed agreement to WBB.

Attachment ’D’


WBB shamefully seeks to deceive the City into believing that GGI made "improper changes", bydoctoring the signed contract (first page of Exhibit "D") and then asserting arguments that havelittle or no merit.

The first page of Exhibit "D" includes two additions which attorney Timothy McInerney and/orWBB chose to block out with a black marker. The purportedly offensive clauses can be seen on(Exhibit "E") -- and they provide:

"GGl proposal dated August 9, 2007 shall be reflected and incorporated into this contract. "

[And, after strikethrough of 17140-Fluid Applied Waterproofing]

"N/A was not included in our Bid"

Obviously, WBB takes exception to GGI’s making any reference to the Bid Proposal.

However, if you look at the Bid Proposai (Exhibit "B") and the Specs referred to in the Bid, thelandscaping does not include the described "waterproofing." This is consistent with theclarifications set forth in Contract section 6.2 which identify that the work will include"GreenroofPlanting, lightweight soil and irrigation per Section 07140. No mention of"FluidApplied Waterproofing."

In challenging the corrections made by GGI, WBB addresses minor issues (such as the paymentschedule) and arguments which are just plain absurd. The Insurance provision in Section 8states that the Subcontractor is to provide either Comprehensive General Liability or CommercialGeneral Liability. GGI deleted the insurance limits for the Comprehensive General Liabilityoption and noted that it would provide certificates of insurance for the Commercial GeneralLiability, WBB is so focused on "finding’r a reasonto replace GGI, it does not even bother toread the changes upon which it seeks to terminate the contract.

B. WBB Cannot Legally Justify Its Request to Replace GGI

1. WBB’s efforts to replace GGI for not providing a Bond is prohibitedby Statute because WBB’s Invitation to Bid did not specify that aBond would be required.

Public Contract Code Section 4108 provides, in part:

(a) It shall be the responsibility of each subcontractor submitting bids to a prime contractor to beprepared to submit a faithful performance and payment bond or bonds if so requested by theprime contractor ....

Attachment ’D’


(c) (1) The bond or bonds may be required under this section only if the prime contractor in hisor her written or published request for subbids clearly specifies the amount and requirements ofthe bond or bonds.

(2) tfthe expense of the bond or bonds required under this section is to be borne by thesubcontractor, that requirement shall also be specified in the prime contractor’s written orpublished request for subbids.

(3) The prime contractor’s failure to specify bond requirements, in accordance with thissubdivision, in the written or published request for subbids shall preclude the prime contractorfi’om, imposing bond requirements under this section.

. WBB did not specify that GGI provide a bond (Exhibit "A"). It cannot require one now.

If GGI signed the proposed contract (without making modifications as to the Bond requirement),it may have been "contractually obligated/compelled to provide aBond notwithstanding WBB’sfailure to satisfy Public Contract Code Section 4108.

2. GGI has already provided labor/materials as requested/approved by WBB

It is disingenuous to argue that there is no contract,when the contract price has beendetermined ,WBB has issued and approved .change order work, and substantial labor and materialhas already been provided by GGI. There have been no project deiays due toGGI.

The verbal negotiations and "mark-ups" by GGI were all done in effortto secure a contract which consistent with both the landscaping projectspecifications and GGI’s written bid proposal.

Public. Contract Code Section 4107 requires that Green Grower. h Industries be given a "reasonableopportunity" to "execute a written contract for the scope of work specified in the sub-contractor’sbid and at the price specified in the sub-contractor’s bid.,."

GGI Stated that it would do the work as per its Bid. WBB unceremoniously deleted thisprovision because it now regrets that it did not initially require a Bond. GGI negotiated withWBB and proceeded with the work in good faith.

Due to the need to proceed with the project, and with some hope WBB could resolve its bondingproblem, WBB and GGI both elected to have GGI proceed with the work without signing acontract. Under the circumstances, there is no justification to WBB~s claim that GGI is unable orunwilling to sign a contract confirming the terms required by the Project specifications andGGt’s Bid Proposal.

Attachment ’D’


The only party refusing to sign a proper contract is WBB. For the reasons cited above, The Cityshould reject WBB’s request to replace GGI.

~ryant, Esq./

cc: Timothy McInemey

Enclosure(s)

Exhibits A - F

Attachment ’D’

ii:33 9254844985 GREEN GROWTH IND PAGE

Fax: (41~ 4~9~

INVITATION TO BID

To:

From’.

Green.Growth Industries Fax:

Attn: Roger/Estimating

Estimator". Clayton Fraser Date’.

_clavton f~westbayb.uitde rs. e,.om

Happy Hollow Park & Zoo-Pages;Attra~-tions Pa¢l<ag~

925-484-0937

7t20/2007

x Urgent x For Review x Pteaee Comme~ x Please Reply

West Bay Builders, ln~. i~ blddtng as a Genera! Cont~ctor on the H=~pPY HollowP=~k & Zoo Attractions package for the City of San Jose and would ~ toinvite you to bid on the" pre~cast se~t wall for ~Is project, The valued estimate forthis projeot is $38,000,000 and the bld dat~ 1~ ~heduled for’lhumday, August2=~ @ 3pro. Our phone ntJrnber is (415) 4~-8972 ~nd our fax hUrTer Is (415)459.0~5, Thank you! @

Exhibit "A" Attachment ’D’

17:47 9254844985 GREEN GROWTH IND PAGE 01/05

I

DUSTRIE5

pioo.~,~n,~’°’~:e25,~.0~o~ ~,o~.,~,o~z~ ~~. August 9, 2007

Re: LANDSCAPE CONSTRUCTION pROPOSALGGI Proposal Number 77t98

Happy Hollow Park & Zoo & Attractions- San Joss, CA

GreenLA1,6.7.Scope of work isGr°wthAttn:LA1 6"8’IndustrIes isEStimat°rbaSedLA1,6.9, LA~ .7,16,~n planPleasedsheets LA’1.6.1 ,t°LA1.7.15,present the followingLA~ ,7.14,LA1,6.10,LA1,7.13,LA1,6.3,pr°p°sal f°rLA1.7,1LA1 "6"4’y°u r c°nsiderati°n’’l LA1.6.5,, LA1.7.9,LA1 ’6’6’LA1.7.7,The

LAI7"IO’E.LAI"9’O’3’LAI’721LAi’9’4iLAI"7’5’MeYerLAl°nLAl’’/’8’LAl"9.14118107.7’3, I.A2.8.5,,,LAl,7.6,LA1.9,5,LA1.9.10, LAi(O) Revisions,LA1,6.!3A,LAi.7.4,LA1.9.6,.9.11(6)LA1LA1.9.7,LA2.1.4,Addendums,, LA1,9-2,"7’2’ LAl.7,17,LA1.9.8,LA2.8.6,LAiBased on.9.2.2,LA2., 1.3,LA1LA1,9.9,,7.18,LA1.9.3 &specsLA’l.7.0,LAi.8,1,LAl.7.,19,sectionsLA1.9.4.DrawnA1.5,LA1.7.t ,LA1.7.20,02481.02505.LA1.9.0.2,LA1.7,12,1~yLA1.7.22,Dennis02810-02920-02930-02950-

Greenmanner.t°plansPr°videasG~°wthfollows:AiiLands°aPeworklndustdeS(TheWill atcomplYfollowingthewill abovesupply allwithproposalalllOoation.Landscapematedal’is validAll w°rklab°r’forStandards3oshallsupervisi°ndaysbe&fromd°necodestheandin bidasatransp~rta~nf~ime~yp~rdate)~spe~ifi~a~nsandGr~enprof~ssiona~necessaryGr~wthand

Industries is SBE certified.

Base Bid Includes:

"," NoPlantingS°illrrigati°nMowPreparati°nsod.’" Transplant (6)TreeSmdBark StakesMulch & PalmTies",. 60 dayPrevailingUni°n/State1 year guaranteemaintenancewages

Trees

Bid Excludes:

Tree ProtectionTree TrimmingTreeRemova!/Transplant(excePt palm trees)Codng, Boring, Drilling,Cutting, Patching,digging through orHauling of AC, Concreteor rock,Traffic ControlErosion ControlSignaga of Any TypeTrench PlatingDrainage of any typeClearing & GrubbingRiparian WoodlandPlanting/IrrigationGate Valve P.O.C.

¯ Hot or Cold Taps¯ Water Meters¯ . ~mport Topsoil¯ Off haul of debris or

spoils¯ Demo work¯ Electrical Work¯ Permits(Bond~¯ Federal Wages¯ Watering and/or

maintenance of existinglandscape dudngconstruction

¯ Pre-c~st Seat Wall¯ Backflow¯ Concrete Work.¯ Select Rock

Rough Grading (Grade isto be re(;eived by GGI at+/- 1/t0 of 1’-0" of finishgrade and sloped todrain)Surveying, Bench Marks,Radius Points (To beprovided by others)Fencing of ~11 typestemporary or otherwiseCopper pipe Installationand/or repairRepair of Landscape &Irrigation damaged byothersWater FeatureDdnking Fountains ¯

Total Base Bid $1,257,377.00

Attachment ’D’

B5/lg/2BB9 17:52 9254844985 GREEN GROWTH IND PAGE ~1/B1

ADD PRICE

Exhibit "B" (.?..’) Attachment ’D’

05/19/2089 18:88 ~ 9254844985 GREEN GRONTH IND PAGE 81/89

Client# 8tJob # 267

PROJECT. LOCATION:Happy Hollow Park & Zoo,300 Senter RoadSan Jose

May 09 progress billing

..GREEN. GR

~4,487.40

Exhibit "C"

TOTAL

BS/lg/2BB9 18:BB 9254844985 GREEN GROWTH IND PAGE. 02/09

Ex~ib~,t ~C." ~ Attachment ’D’

9254844985

250 Bel MsHr~ Key~ Blvd,l’~uildltag A

Novato, CAPh~e~ (415)

~sx: (415}

License N~mber 626859

To Green Growth Ind., Inc.57 California Avenue, Suite JPieasanton, CA

GREEN GROWTH PAGE

C!-IANGE ORDERNumber ~

H=ppy H~!Iow Park & Zoo

nla nl~C-0281

The above ref~i’enced company does hereby agree to ~ake the following contract changes below:

l,~CCEPTED -- The above pdce~ and ~pecification~ of thi~Change Order are satisfactory and are hereby accepted.All work to be performed under the same terms andconditions as specified in original contract unles~oth~rwlse stipulated. Subcontractor w~ive~ any rights for

recovery of additional monie~ for f~ilure to respond inwriting wrdqin 48 hours, after receipt of ~ht~ change order, In~ccepting this change order, subcoot~.ctor agrees that allco..~r~ arising undeq’iq.cident.al to, or b.y. virtue of this changeorder are satisfied, and included in the above price.

Exhibit

GREEN GROWTH PAGE

Client # ~ 1Job # 267

WORK COMPLETION:

PROJECT LOCATION:Happy Hollow Park & Zoo

,00 Senter Road"San Jose

De~�l’iption

Please see the attached spreadsheet¯ showing what Green Growth;’s cost was

to re-route 160 feet ~f mainline,"’ We are Crediting you for the totalamount divided by the 180 feetwhich is $3~..33 per f~ot. We took.the unit price and multiplied it bythe 1813 feet completed by J,W,.Ebert.

GREEN

Amount

-6,179.40

Exhibit G-q [Ntachmant’~’

9254844985 GREEN GROWTH IND PAGE

GREEN GROWTHINDUETRIE~

Client # 81Job # 267

1542

’ ....WORK

PROJECT LOCATION:Nappy Hollow Park & Zoo

....1300 Senter RoadSan Jose

Per field clarification thecontrol Valves shall notto accomodate thisdrip valve assembliescontrollers A&B shall bestations.Materials & TaxLabor & SupervisionForeman 11 hours @ $1Laborer 11 hours @DeliveryO.H.P.(Excludes copper line)Tie in to copper line tothreaded

.GROW, .

-:i:;Pi~a:se: r;~ni:it:.tUthe:abo:ve.addre~~":." ." ..,. ......

Exhibit

06/03/2009

3,961.00

715.00 ¯594.0075.00

801.75

cad¯

To’r~,L s: $6,146.75Att~

BSi19i2BI~9 18: BB 9254844985 GREEN GROWTH IND PAGE 06/09

CHANGE ORDERNumber

~/~/21/°~ I ~oo oo,Hallow Park & Zoo

The above referenced company does hereby agree to make the f011owing Contra0t Changes below:

ChangeACCEPTEDorder- areThe~atisfactoryabOve prlceSand, areand ~pecificationShereby accepted.of this

L oondition~other.wiseAII work t~puM~ed~asbe~spec~fiedp~rf~rmedSub~ontract~r[.nunder~rigina~thewaive~sam~nIr.~tany~term~dght~un~e~ndf~r

Exhibit

85/1912899 18:80 9254844985 GREEN GROWTH TND PAGE 87/89

INVOICE


PROJECT LOCATION:Happy Hollow Park & Zoo1300 Senter Road

San Jose

Collect Soil Samples @ 8 iocatiotesting agency perform bulk d.~,suitability tests per RFP 31.//Lab Fees: 8 tests @ $300 ~,¢t]/. / " ~,-,~ ,..; \\\~Labor [,~E.,,/~~.",,"~’~’~

. " /Foreman 3 hours @ $64~.~~u ~~ ~\~\~~.~,u n.r.

....... $ ~ .z, .~. ~ ..... .~ ,.,,

’ ~~L " ...........*~~<’-.., .,:>~;~.""’~ ..... 1/~k .... ~" ,,’ J" ’

..,. :,[email protected] G£OWTH..

2,400.00

!92.00389,00

9254844985

~n GroWth It~d., Inc.57 Caflfomla Avenue, Sulte JPieasanlon; CA 9~,~d6

GREEN GROWTH IND

CHANG,PAGE 08/09

E ORDER

~k.& Zoo

>elow:

05/19/2009 18:00 9254844985 GREEN GROWTH IND PAGE

GREEN GROWTHINDUST~II~$

P.O. ~l=leo~ton. CA

! N VO I C ~


WORK COMPLETION:

PROJECT LOCATION:Happy HOllow Park & Zoo

....1300 Senter RoadSan Jose

Credit approximately 400 Engligrub existing ivy,. Soil prepowner-installed plantingCredit English IvyMaterials (Includes tax)Labor & SupervisionForeman 8 hours @Laborer 8 hours @ $53Clear and Grub existingDump FeesLabor & SupervisionForeman 10 hours @ $64Laborer 10 hours @ $53 peDump Truck 10 hoursSoil Prep approx, 350Materials (Includes,tax)Labor & Supervisioh

-866.00

-512.00-424.00

225.0O

640.00530.00550.00

165.00

TOTAL

of 1

Jamie LaFountain

From: Jamle LaFountain [email protected]]

Sent: Friday, May 23,2008 9:37 AM

To: ’claYtonf@westbaybuilde rs,com’

Subject: Happy Hollow Zoo

Importance: High

Hi Clayton,

I ~ responding to your second request ~a fax on 5/6/08. We were wondering if there was any way thatyou could submit more than the $20,000,00 leftover from the total billing of $30,000.00 for the Palm Trees.We understand flaat only $10,000.00 was submitted for April and to date there has been irrigation completedas well on those trees.

_As far as your second request tot a new Schedale of Values, Rudy is working on it right now and we willhopefully be able to get something to you by i~ext week.

Please let me know if you have any questions.

you,

Project AdministratorGreen Growth Industries51 California Avenue, Suite JPleasanton, CA 94566925.484.01130925-484-4985 Fax

5/23/2008 ’ Exhibit Attachment ’D’

d

m

ExhibitAttachment ’D’600~/6I/~8

Full Servicecompcmy

P.O, Box 1275

INVOICE

l]A’t~- ¯ " I ’ , ,.’ ’

Client # 81Job# 267

" WORK COMPLETION:

~ PROJECT LOCATION:.[ .-- Happy Hollow Park & Zoo

t300 Senter RoadSan Jose

April 09 Progress Billing 24,373.40

$24;373.40

iNDUSTRIES

A’ Full Service

P,O, Boz 1275

INVOICE....... ,. .~, ..... ~ .~,:.~,~:~..

~AT~,.: .~: .:. J...;. :..,~,,~.:’..


I10,084.95

Attachment’D’

Exhibit c.-_____~.i q~Attachment ’D’

GRB~N GROWTH-INDU~TRI’~-~

INVOICE

Client # ]1Job # 267

’ " ’ " ’ ’ 06105120~~----~--08 " ...... - .......

WORK COMPLETION: ’ I ..................................I

PROJECT .LOCATION :.Napp.y H.ollow Park & Zoo

;00 Senter Raad "San Jose

Description.

Progress billing for Palm transplant

GREEN

Amount

30,0o0,00

TOTAL i: 000,00 " =

Atta~menl’D’

IOlOJ~

g

(INI H1010~19 N33N9 Exhibit ~-IL0 sBs~8~sAttachment ’D’

WEST BAY BUILDERSr INC.:250 Bei Matin Keys Boulevard, Building A .NovL~I:oI CA g4949TEL {41S) 4S6-8972FAX (415) 382-9896

PROJ£CT; Happy Hollow Park & Zoo - Zoo & Attractions130D Senter RoadSan 3ose, CA 95112,

SUBCONTRATOR APPLTCATiON FOR PAYHENT(MUST BE RECEWED ]SY THE 20TH OF MONTH BEING BILLED)

30h Name3oh Numbel~

Month

Happy Hollow Park & Zoo - ZOo & Attractions

From:

Amount requested by subcontractor: ¯

Tot~l Contract + chanoe OrdersCompleted I:o Da~e %..,

To~l Earned l~s Re~en~on ......Le~ Pre~ous ~ym~t ~.,(Une 6 ~om pffor

cur~tpyment Due ............

1

34

*’~ I1’ you have que~ons regarding the amount approved for l~ayment’~ please call WBB’5 ProJ~ Manager,

Amount approved for payment:

From: Date;,

You have been approved for the payment amount noted above. Please submit: the following paperwork:

Your conditional release fo~ $.Your unconditional re!ease for $. ,.Conditional releases throughUnconditional releases throughfor the following Second tJer subcontractors or suppliers:

throughthrough

5 Please also submit i~ms circled below;

... Liability Insurance Certificate.

Additional Insured Form CG2010 11/85

Auto Insuranc~ Certificate

Workers Compensation Insurance Certificate

Cer’dfi~ Payroll Reports through,

ExhibitCINZ HJ_~IO~I9

Attachment ’D’q~ :8~

17:50 9254844985 GREEN GROWTH IND PAGE 01/01

Exhibit

m

m

Attachment ’D’


250 Bel ~Viarln Keys Blvd.Building ANovato, CA 94949Phone: (415) 456~8972Fax: (415) 459-0665General ContractorLicense Number 626859

Subcontract No,283 c02B10s

THIS AGREEMENT, made and "entered Into at Novels, CA, thls 7th day of December 2.007, by ~nd betweenWest Bay Bullder~, Inc., hereinafter called CONTRACTOR, with Its prlndpal office at 250 eel HaHn Keys Boulevard,Novato, CA, and. Green Grow~Jt Industries, I.n&~ 57 California Avenue, Sul~ J, Pl~asanton, CA 94566 hereinaftercalled SUBCONTRACTOR.

R~CITALSOn or about the 20th day of’~oveniber, 2007 We~. Bay Bullders~ Inc., CONTRACTOR entered Into a prime contract withCity of San lose Department of PUbliC Works, he~’elnal~er called OWN ER, whos~ addres~ is200 East Santa Clara Streek, .6th Root, San lose, 95113, to perform the following construddon worl~ herelnal~er calledPROJEC]’:

Happy HollowZbo and AL1;r. a~ions Package

1300 Senter RoadSan

Said work isto be performed In ’accordance with the prime contract and th~ plans and specJflcau0ns. Said plans and.spedflca~ons have been prepared by or on behalf of The Portico Group, :ARCH~EL-T, Whose address is15400 4th Avenue, 3rd Floor, Seaffie, WA

SEC~ON .1. -" EN’rIRE CONTRACT

SUBCONTRACTOR’ certifies that it: Is fully familiar with all of the t.erms, cbndltlons and obllga~ons of L-he C0ntrbd:Documents, as i~erelnafter d~.fined, the Ioca~on of the j~b site, and t~he condi.tlons-under which the work Is ~o beperformed, add that it enters Int~ this Agreement based upon its re~s~6nable Investigation o~ all of such ~atters ahd IsIn nd way relyln.g upon..any opinions or representet~6~s of. ¢ONT .RACTOR. This Agreement represents the entireagreement, The Contrac~ Do~ments are Incorporated into this Agreement-by ,reference, With ..th.~ same ~orce andeffect as If they were set: forth at length herein, and SUBCONTRACTOR and Its subcOh~ractors will and are I~ound byany and a!l of ~he Contract Documents Insofai" as they relate n anypart or In any way, directly or lndlreddy to the workcovered by this Agreement. SUBCONTRACTOR agrees to be bound to CONTRACTOR. in the same manner and extenl:as CONTRACFOR Is b~und to .OWNER under the Co~kract Do~m.en~s, to the extent ~e w6rk p.roylded ~or In ~hls "~,gre~rnent,.: and that where, In. ti~e Contra~ DOCUments rei~erence Is made b~ CONTRACI:QR and the work: orspedflca~loff therein peffa!ps tQ SUBCONTRACTOR!S ~rade~ craft, or:~-~)e, of work ~en each work or specification shallbe Interpreted b~ apply to SUBCONTRACTQR.Instead .of CONTRACTOR. lh ~e. eve~ of any conflict be~een the.r Irements of the prime co~t~ac~ and thls Subcontract,. the SUBCONTRACTOR shall be governed by the pmvlslons~qp~s og the greater dub/on the SUBCONT~CTOR. Thepl~s~ ’~COntr~ct Documents" Is defined to mean and Include

this Agree.mebt, together wlth any exhibits ~r addenda thereto, the’ prime

SUBCONTRACTOR agrees to furnish all labor, services, materials, Installation, cartage, .holing, supplies, insurance,equipment, scaffoldlng, tool9 and othei~ Facilities of every kind and demmiption m.qulred for the prompt and eftldentexec~Jtion ol’ the w0.rk described herein and to perform bhe work neces~.ry or normaily ~perform. ed bySUBCONTRACTOR~S trade or Indden~l to ~mplete land.*~ap~, irrlgatlo.n~ pa!m t~ee re.l~catl~.n, ~rushed stonesurfacing and mlscellaneou~ site furnishings and g~eni’o.of planl~ing and irrigation for the pmj~=d: In s~rid:a~ordance Wl.th the .cont,’act Documents and as n1~Pe pa~cu!ady, ~h6ugh not ~d~slv~ty, spedfled In Section{s):

Relocation, 02505 - ¢rush~l Surfaclmgi. 02810 - Irriga~lqn, 02870 - Site=2950 -FUrnl~=hil

Soddin

SUbcontractor

WEST BAY BUILDER& IN(:;;,

Attachment ’D’Exhibit "D" -

CONTRACTOR agrees to pay SUB~O.NTRACTOP~ for the strict, per~rmance o~ Its work, the sum ofone mllllon~ flv~ hundred sevenL~-on.b, thous.~nd, six. ’hundred ~hlrL~.-seVen and " Noll.0~ dollars($1,5711637), subject to addltl~nsl and dedu~or~ ~ changes In the work ~s may be agreed .upon, and tu make

.’.~!_ payment In a~cordance wlth the Payment Scheduie, ~ectlon 4. "

~t~cTO~� agrees tb pay SUBCONTRACTOR tn monthly payme.n~ of 90% ~~.~....wnzc, r~ nave;~’i~’: In position an.~l i’or which the right to.payment h~s "bedn "p.roper!y do~~~..Sf this ,..,

~_a.~ No payment made prior to compi~tlon arid a¢cepb~nce ofthe work shall-be construed as~i~, ~:~of any part of SUBCONTRACTOR’~ Work: Payme~ is "contlr~gent upon SIJBCONTRA~"~OR p~i~ing~~-’West Bay Builders, Znc, co~dittenal, a.pd un~oni~eJo..nal lien relea¢~s.¢o~]es attached),. Insu~nce certlflcate~," "

~"t~l~i’ ~l’~:~tus letters, an~ Its cerfJ~ed payrollst’br any a~rt all:of ]t~ vendors arid subcon~ra~l:ors by tlie 20~ day o1’ the:,ll~tS."~l~i~.belng billed i’or, as appll~.able. Further, unconditional lien releasessigned by. SUBCONTRA~’OR shail~we as

proof el’ payment through the effei~ve tfnle pe~lod I~ the b~dy of the release. CONTRACTOR shall be entitled ~0 usesaid releases as proof el’ paymen~ in ~11 for the effective time pedod~ .e~ffe~Ively barfing late submitted certified payroll,change orders and. any claims for additional compensa~lon~ unless ,detailed sp~dflcally In wd~lng on the face el"release and In accordance with the subcon~:ract pmvlsions, I.n¢ludlng submissions, deadlines. At the conclusion of theProject SUBCONTRACTOR 19 required ~o endorse the. stahdard CO~TRACTOR ~orfa entitled "App cat on ~or Full andRnal PaymenU’ as.a co~dltlon precedent to final paym’ent~

SECI~ON S- WAGE RATE DEC];$IONS / PREVAIL£NG WAGE / CERTTF~ED PAYROI;L REPORTS

" .-:~l~.(~i~.~~~ble l:Or l’ollowlng l:he .guidelines o.f me ~ll#orn~ ~bor ~des, including ove~Ime hour,~~;~~a~. (A~a~ed I~ an ex~m~ of the ~bor ~d~ ~r SUBCbN~O~ to review and {nl~al).~{ ~aBe~l’ ~~ ~on appll~ble ~o ~fs ~n~a~ let California Dimmer of ~ndu~dat Rela~on~~un~ of Santa Cla’~a for 2007-~ un~l supers~ed by a new de~tmlnation I~u~ by the Dlm~r of IndustrialRela~ons. SUB~~O~ agrees to submit ce~fled payroll .repo~ to CON~OR ~o later ~an throe (3) wo~ingdaysa~er lair has b~n

SE~ON 6- GENE~L SUBGONT~ PROV~IONS~e Genial Sub~n~ P~vl~0ns ~e .an Integral pa~ of thfs Agreement.

SECT£ON 6.1 - EXCLUSIONS.¯ Hot or cold taps_ .¯ Water meters/5~J~/~ ~F¯ Impo~ ~psoil ...¯ Off haul Of debris or spoils¯ Demo work¯ Ele~dcal work ’ -¯ Pe~i~/bonds ¯¯ Wated~g and~or maintenance of exiting lands~pa duri~g.c~u~ion¯ P~-cast’~at wall; Bac~ow¯ Concrete work¯ ~le~ ~ck¯ Tree pmte~ion, T~e tr!mml.g¯ " T~e r~oval 1 ~ansp!ant (eX~pt pal,m tre~) " "¯ Codngr bo~ng, dHliihg~ ~U~ing, p~ching, digging through or hauling of AC, co.~e~ or

, Traffic Control¯ Erosion ~ntrol¯ Slgnage ~ ~~ ~.~¯ Trench plating ~¯ Drainage ~ ~ /¯ Clearing and g~bblng¯ Riparian woodland pl~nUng and i~gaBon

Exhibit D - 2- Attachment

¯ Rough grading (grade is to be received by SU BCONTRACTOR at~--1/t0 of 1’-0" offinish grade .and sloped to drain)

¯ Surveying, bench marks~ radius poinLs .¯ Fencing o~/I11"~(;~ "F~/II~O~.-Y¯ Copper pipe Installation andfor~’epalr¯ Repair oflan,dscapeand I~’rigation damag.~d by others¯ wateP°feature¯ Drinking fountelns

SECTION 6.2 - CLAI~FICATIONS¯ PriCe Of $22,41t a~cepted for IF & I of section .02505¯ Pricing of$104,112 accepted for F & I of items A~ By.C, G~ H, I and J in Section 02870¯ Pricing of $187,737 accepted lot’ P& I of Gr~enroof Planting, lightweight soil and

IrrlgaUon per Section 071~0

SECi’~ON 7 - SPECIAL PROVISIONS

This notice requ{red by Business and PrOfessions Q~de 7030 Isan. {ntegral .parlor this Agreement: ’Contractors am required .by law to be. licensed and. regula~d by the C~nttac~o~’ Sbte ucense Board which hasJurlsdiction"l~ investigate ~omplalnts ag.a.!nst:.Con~raC~or.~ If a complalnt Is filed wRhtn three years of the date of thealleged violation. Any ques’dons concerning a Con~ac~or may be referred to The Registrar, Contrac’cors’ State UcenseBoard, P.O. Box 2600, Sacramento, CA 95826.Contractors are required by law to be licensed and regulated by the Contractors’ State License Board.Any questions con¢.erning a contractor may be referred to th.~ registrar ofthe board whose address Is:.

Contractors’ State Ucense Board- 1020",N" St~eef~ Sacrarnento~ CA 95at4

SECTZON 8 - INSURANCE

SUBCONTRACTOR shall, at his expe.~se, procure and mai~aln Insurance.on all of hisoperations, in companiesacceptable. ~ CONTRACTOR, as fallows: Workers’ Compensation and Employer’s Uabili~ ~nsurance, Workers’Compensation Insurance ~hall be provided tothe ’f~ii extent ~equlred by state law, an;cl shall include a Worker’sCompensation Waiver of Subrogation Endorsement (this ondorsement must be aL~ached to the Worker’s CompensationCortlflcate), If there Is an exposure ol: injury to SUBCONTRACTOR’S employees under the U.S, Longshoremen’s andHarbor Workers’ Compensation Act:, the .1ones Ad: or under laws, regulations Or .statues appllca.b[~ ~o madt~meemployees, coverage shall be included for such injuries or claims. Empioye~"s IiabillLy insurance shall be in an .a~nountno tes~ than $1,000,00D. each employee for bodily Injury and disease.

General Uabllity Insurance. SUBCONTRAC’FOR,~hall ~atry ,~omprehel~slve General Llabilib/ or Commercial GeneralLlab!ll~/insurance covering all. ope~tlons by or onbehalf of the SUBCONTRACI~OR pmvlding IDsurance for bodily InjuryliabllRy and properLy damage IlabllRy fo~ the limits of. IiablliLy Ir~di~ted below and Ihcluding coverage for:

t, P~emlses ar)d Ooerations2. -Products and Completed Operations3. Contractual Llabilil:y Insuring the. obligations assumed by SUBCONTRACTOR in this

Agreement,t. Elroad Form Property Damage (Including.completed Operations)5. Explosion, Collapse and Underground Hazards6. Personal Injqry Ll~bltity

A. Umlts of Uabillty .- All Policy Fo~ms1. If SUBCONTRACTOR carries Com, prehenslve General U_ablllty Insurance, the Ilmll~ of liabiliLy shatl not be

less ~an$:~ach occurrence ~

~, ~,,.~f SUBCON’~kCT.OR carries Commes’dai General UablliL’y nsurany.e~ the limits o~.llablltty shall not he lessr than: ¯ ,. .

$1,000,000 each occurrence combined s!ngle Ilmll: for bodily Injury and propelk~’dam~ge$:L,O00,O00 for Personal Injury Liability$2,000,000 Aggregate for Products-completedOpera~one$2,000,000 General Aggrega~

The "general aggregate" Ilmll; shall apply separately to SUBCONTRACTOK’$ work unde~ this con~ra~~ - " Subcontracl:or. ’

..... _E. _xh. .... Attachment ’D’

B. Special %1alms Made" and "Modified Occurrence" Policy Form Provisions; SUBCONTRAC~OI7 ~shall not provideGeneral Liability Insurance.under a ~Clalms Made" and =Modified Occurrence~ Commerclal General Llablll~/form.

Additional Insured. With respect to whichever Ge~leral UablllL7 poll.cy fQrm is furnished as required,above:1. ~:ONTRACTOR, i~ offlcerss directors and employees a!~l OWNER and i!~ eml~lo¥ees a’nd other partles

as required by contra~ and the Arch|tag shall be named as additional insured. The Products-Completed Operations coverage shall be maintained ~rough .all required statutory per!ods applicable to- theProducts-Completed Operations coverage Inclusive of a.ddltlSnal Insured provisionsin el! ~uture renewals ofthe coverage.

2. The polio/shall be endorsed to stlp.ulate that the Insurance afforded the additional Insured shall apply asprimary Insurance and that-any other Insurance malr~talned I~/. CONTRACTOR or OWNER shall be excessonh/and shall not be.called upon to contribute with sU~IGONTRACTOR’S.Insurance.

3. Coverage for th’e CONTRACTOR, its officers,, directors and employees and OWNER and its employeesand other parties as requlre~l by ¢ohtact as additional Insured shall I~e provided by a policy provision or byan endorsement providing coverage at lease as broad as Addil~onal Znsured (Form B) Endorsement FormCG2010 (tl/85) or Itsequivalent as published by the Insuratice Services Office (ZSO)

Automobile Liability Insura~ce SUBCONTRACTOR shall carry.automobile liability Insurance, Indluding coverage for allowned, hired and noh-o~ned au~rnbbiles. Theli~lts of ll~l~l[ity shall not be less. than $1,000,00.0. Combined singleLimit each accldentfor Bodily Insure and Prope~o/Damage.comblned.

Alrcraft ~nsurance If the 5UBCONTFRACTOR or their Iower.tle~ subcontractorS t~se any owned, leased, chartered orhired aircraft: of any type (~includlng hetlcgpters) In the performance of thls contract, they shall i’nalntaln aircraft: liabilityinsurance in an amount of not less than $5~000,0D0. per occurrence Including PaSsenger Liability,. Evidence ofcoverage In the form of a Ce~fl~ate of ~su~’ance Indudlng additional insured .status, as required by the general.liabillb/coverage, she I be prov!ded poor to thestart Of work to CONTRACTOR.

pollution Liability ~f .SUBCONTRACTOIL~ are requli’ed t~-perform remedial hazardous material operations such asasbestos contalnlng ma.terial~, ~tamlnatod soil e~c;, they musts 1i~ addition to the above requ foments, carry a¯ ’Contractor’s Pollution Uabtllb/" poliCY with limits not less than $2~000,000 per occurrence and not less t~an$2,000,000. aggregate for Bodily Znjury) PerSonal ~nJury and Property Damage naming CONTRACTOR and OWNER.asan additional. I~ured Includlng\contractoal liability ~verage, Zf.SUBCONTP, ACTOR or .their lower tier subcontractorshaul hazardous waste they must carry Automobile Uabllib/ Insurance wi~ a $2,0Q0,000 combined single limit peroccurrence for Bodily ~njury and Property Damage applicable t~ all hazardous waste hauling vehicles and Include NCS90.

professional Uablllw A $~L,000,O00. professional Uabllll:y InSurance pollW shall be carl’led If SUBCONTRACTOR or theirlower fJel~ subc..bntractOr iS to provide design or deSign/build’ services to the proJed;. Such insurance shall indudecove~ge .for contractual liability. Evldence,.of coyerage In the form.of a O~rtificat.e of insuranc~ shall be provided priorto the start of work to CQNTRACTOR and such coverage shall be malhtal~ed for two (2.) years following completion ofthe project.

,C.erLlf]c~tes- of Insurance A Certificate of Insurance lnclud.lng endorsements as. required above, as evidence o~ theInsurance required by this Agreement:~ shall be furnished by SUBGONTRAC£OK to CONTRACTOR before any workhereunder is commenced by SUBCONTRACTOR. CONTRACTOK reserves the right to reques~ and SUBCONTRACTORshall provide upon demaOd a.certifled, copy of all polldle~ of I~su.r’a~ce reqaired I~y this p, greemen~ The .Certlflcate~ ofInsurance shall l~rovfde that there willbe n.o canceller’]on 0r.re~iuctlOn of Coverage wlthoul; thirty (30) days prior wrl~enOotlce to OWNER.

In the event the :$UBCONT .KACTOK falls ~o. ma, ln~li~ any Insurance coverage required" ur~def this Agreement,CONTRACTOR may maintain such coverage an;d cha~e expense to SUBCONTRACTOR, or terminate thl~ Agreement, orhold the SUBCONTRACTOR acoount~ble for all cost~ incurred by CONTRACT.OR as a result:-of .SUBCONTRAL"TORSfailure to maintain the proper nsurance: Upon wr!~ request from CONTRACTOR~ SUBCONTRACTOR shall providecomplete policy or policies t~CONTRACTOR within ten (tO) days., f

The requl!red nsurance ....... she] b~ subject ~0 the apprbval., of CONTRACTOR. and 0WNER~ bul: any acceptance of Insurancecertir3~ates by CONT.RACTOR or .OWNER shall tn no way hmlt or relieve SUBCONTRACT(~R of the duties andresponslbllit~es by’ SUBCONTRACTQR In ~is A~]ra&lient, If higher Ilmit~ or other fo~s of Insurance are r.equired in theContrac~ .Documents, SUBCONTP, ACTOR will coml~ly with such requlr.L=rnents. ,

Subcontractor

E×~_ibit ~ - ~ Attachment ’D’

If SUBCONTRACTOR falls to comply wlth any of the provisions of his Section, SUBCONTRACTOR shall, at its own cost,defend, IndemnlfY and lind harmless CQNTRA~ZTOR al~d OWNER, (!ncludlng thei~ officers, agents, employees, afflllates,parents and subsldlaries) from and against any and all ilabi!Ity .~am.ages, los~_es,, clali~sl demalld.s,.actions, causes ofaction, costs, Indudlng atteme.YrS l~ees and expends,. ~r a.ny. of them resultlng from the death o~ Infery of any person ordamage to any property to the e~tent that CONTRACTOR and OWNER would have been protected hadSUBCONTRACTOR, coniplled wlth all of the provlslons ofthls Section.

Property Insurance Conslderatlons, CONTRACTOR~ OWNER and .SUBCONTRACTOR walve all rlghts agalnst each archerand agalnst all other trade cont~actors~ subcontractors and sub-subcontractors for los~ or damage to the exl~entcovered by BUllder’s Risk or any other prop.arty or equ!pm~nt insurano~.appll~able to the work, except such rights asthey may have to.the proceeds of such insurance.

In the .event SUBCONTRACTOR makes a dalrrl agaIfist CONTRACTOR’s Builder’s Risk or slmllar pollcy,SUBCONTRACTOR shall be solely respo~s ble fdr any and all deductlbla amounts.

Failure of CONTRACTOR or OWNER to enforce In a timely manner any of~he provision of the Article shall not act as awaiver to enforcement of any of these p~ovlslons at a later date In the performance of the Agreement, Any except]onto i~he provislon~ of this section must be delineated in the Contract documents.

SECTION g-pERSONNEL

SUBCONTRACTOR mu~ provide experienced ~and competen~ personnel for supervision, CONTRACT.OR~ at its soled!sctet;Iont. may reque~ to have field and/or management. ImmeqlatNy removed and replaced with .an individualaoceptable to. CONT~CTOI~. Failure by SUBI~ONTRACI"OI~ to cOmply-within 48 hour~ of written notification constitutesa m~tedal breach ~f this sultantract agreement. [f~equest~eq b~. C~]NTR~C[OI~, your company Is requlr~ to completea Subcer~tractor.E~ally Repod: Form (form may be provided).and ~urn it In on a.~Jaily basis, Payn~enl~ y~lli b~ held I~ theSUBCONTRACTOR does not c~mp y with the request.

Force account work (time and materials) to be performed at direct c.osl~ plus allowable n~ark-ups per the contractdo~ur~ents. If no mark- ups i~re sp~dfied, then the applicable .percentage wiil be lir!!ted to the following: !) TotalalloWS, hie labor mark-~p = i5%*. for a I overhead, supervlsiQn, and administration} 2) Total allowable fo~

n~t~l~ ~ d ~lj~J~i~l~Ol~- to prOe-_.eed on a time and materials basis, All delivery tags for matenals, equipment,and field abor must: be verified by a Wes~Bay BUilders, The, flel~ superintendent. ~ work orders for materialsand/or labor will nbt. be oa(d, nor will work orders for martials and/or labor although slgn.ed~ but by non-West BayBuilders, [nc. personnel, be paid..

Stop Payment Notice exces;ive~ ImProper or erronebus stop payment notices flied by the SUBCONTRACTOR orl~ er subcontractors, SUBCONTRACTOR’s materN suppliers, or SUBCONTRACTOR’s emplQyees Will result n a ~5% feecharged to your account of the .excessive, -improper.~r erroneous ~mount. Thl~ amouBt will be assessed to theSUBCONTRACTORS’ ai:count In additlon to ahy rotated costs for [emovin~ such nofJce.

SECTION :tO- PAYMENT

if the OWNER or othe~ respon;;!Ne. 2arty del~ys in ~akJng any payment: to CONTRACTOR from which paymentSUBCONTPJ~CTOR Is to be made, (’-ONTRAUTOR shail have a:reaso~able ~lme ~:o m.a~ payment to SUBCONTRACTQR."P, easo~aNe time" shall be def~rmined accordinglongest p~ried o~ time rsquired by either the CONTRA.CTOR or ~e SUI3~ONTRACTOR to pUPsue to conclusion ~eir legalremedies agaln~ ~e OWNER or other resp~nsINer~medles oroth~ r~ ated and similar re~nedleS.

If SUBCONTP~CTOR asse~cs a claim ,which i.nvo~ve~, in whola or i~ par~, a~ or.omissions Which are the re~pon~iblli~/but not Ilmi~ed ~ claims for failure to pay~ ~n extension o~ time, delay

to the OWNER or other responsiblethe CONTRACTOR in all steps taken In connectlon.wlth~burse the CONTRACTOR for all expenseS, Includ!ng legal

submission ~f SUBCONTRACTOR’S daim toI shall bl~d SUBCONTRAOTOR II~ any action orproceeding

resolvlng =. For any b~i SLIBCC)NTRACIOR to CONTRACTOR, at CONTRACTOR’s requ~

Exhibit............................ Attachment ’D’

SUBCONTRACTOR shall provlde a certlf]catlon of dalm under penalb/of perjury in conformance with the CaliforniaFa se Oalms A~ (Governm~nt Co~le Sectlon 12650 eL Seq.)

I:N W:ITNE-&.~ WHEI~EOF: Thepartles hereb3 have exe~ul:ed this Agreement for themselves~ their heirs, executors,successors, admlnlstratQrs, and assignees on the day and ¯year written below, .

Contractor’s State License-No, 662718

~’Corporatlon I,]Part~ership [] ProprietorshipDate:

Note: Failure to execute and return this contract withln thirty days shall be consideredyour agreement’to perform the work on the terns, stated herein.

Contractor’s Sta~ Ucense No. 625859

[] Co~oratlon [] Partnership I--]ProprietorshipDate: j _.,.. ............ _., ............ . .._ ;...,

Exhibit "D- (,................... Attachment ’D’

General Subcontract Provisions

lmpad: analysis s~bstentia~ng the.delay, Failure ~ sUbmltthls

NO dalm~ for addl~onal compe~al~bh or~/111

~hether.ln the f~mlshlng ofm~t~dal by’ COI,,q’RACTOR, or delays by otherhowever, that In. the evenb and In such event.only, that CONTRACTOR

subCon~actor has provided nottce of sald delay~ SUBCONTI~CTORCONTRACTOR. f~ht:OWNEP, as Is equltabl.e under all of the drcumsta..n~es,

for a reasonable tlme, Without payment qf additional compensation,a.;nd It is spastically agreed that the failure of

for’ damages against CZ)NTRACTOR. [n theagrees ~1:o Pay Its’prorate ~hare of a!l costs and expenses Incurred tn th, e

Incurred In g~od faith, and SbBCONTR~CTOR shall fully cooperate with

EJ. CHANGES IN TIlE WORK - SUBCONTRACTOR h~reby agrees to rn~ke any and all changes, ~utnlsh the ~mal~dals and pe~rm the work thatCONTRACTOR may require, without nutll~ng ~hls agreement, at~ a I~sdnable addition to or redu¢flon from t~e Contract Pdce stated herein, and to proratethe Contract Pd~. SUBCONTRACTOR shall adhere strictly to the .plans and spedt’lcations unless a change Is auth0itzed In wrll~ng. SUBCONTRACTOR shall

Subcontractor 7

Attachment ’D’

has dlscovered theproper notification of the

. wlthout

work orders signed by our field personnel serve only as athe work without written dl~’ectlon from CONTRACTOR.d]re~on from CONTRACFOR or any form of dlre~on

for aulhorlzed e~o-as Is, an express condition precedent tothe CONTI~.CTOR written copies of Its

written nol~ce Of daim. or as defined by theshalJ be performed as oi’dered In writing by.CONTRACTOR and. the

by SUCONTRACTOR to CONTRACTOR.

defined by the general conditions of the prlme contract, or whlcnever is more smngen~, Whether or.no.~ such work n.as ~een penu "

shall be deemed to have abandoned I~. dalin. If b-UBCCthe. CONTRACroR~ duty I:o the SUBCONTRACTOR. is llmlted to

¯ " any delta submJ~ed by SiJBCONTRACT~OI~ to CONTRACTOR, atof d~Im under penalty of p.el-JU’W In conformance with the

to the passing of ~ald dalm tO the OWNER. Tile SUBGONTRACTORcon~ultants~ fees, requlred to process.the delta’ pursuant to the contract

, whl.ch affects, the scope o1’ the work Or ~he expense o~ otherupon C~NTRACTOR to discover any mistakes, errors, or

as referenced ~oove In th.e SUBCOI~TRAL-iOP.’s shop drawings orsubmittals

ihe-requir~rrients of the Pdme Contract, drawings, and ’speci~catlons,

E,4 No’ change~ alteration or modlflca.tton In or devla~don from this Agreemen~ ~r the plans and spedflcatlons~ whether made In ~e manner hereinprovided or not, shall release or exonerab~ In .Whole or In pa~ any sureb/or ~iny bond given In connectiod’wlth this Agreement, and nelth~r OWNEK r~orCONTRACTOR sh~ll be under a~y ob igatlon to notJfy the surebi or mr.e.l~es of any su.ch

¯ E.$ For any dlsputed chai~je~, b.etween the oWNI~R and ptlme ~’ONT~CTOR .oi" bebN=n, the pr;l~e .CONTRAC~).R ,a.lld t.he S.IJ .I~.ONTIRA .t~T.O.R, th,eSUBCONTRACTOR shall proceed Wlth l~he work per the wrlU~en dlred~on ~f the CONTRACFOR, SUBCONTRACrCOR sna~ see~ re~m~ursemen~ mrougnremedies avallable per the SubcQnttact Agreement. .,

the prop~’r ~om1~nq.e of i~w~rk, thereby causing delay to me prime!nd~dlng consequential damages, llqulda~d damages, and general

p~rag.raph.l~ such det’a~ll: I~ caused by strikes,bV SUBCONTRACTOR to CONTRACTOR.

LIENS - shall ~: all Umes , ar "CONTRAC!’oR and P~NER..harmless aga~r~, all liability ~or deltas and liens for~ i~dudlngany costs and expenses for

¯ resu tlng. b~ CONTRACTOR or OVYNER from suchs or li~ to be removed from

Is authorized to u~e whatever means Whlch In Its discl’eHQn It may deemend the cbsts, together with actual a[tomeys’ and consult#nts’ fees Incurred

Exhibit

S~bcontractor,~,.

t

Attachment ’D’

paragraph will be suffldent and complete when mailed to SUBCONTRACTOR at the address shown In this Agreemenl~ II~ the event of an emergencyaffecting the safety of persons or property, .no notice referre~ to in this parag~ph shall be required,

H.2 CONTRACTOR may also terminate this Agreement n the event of any other mal~rlal breach of this Agreement by SUBCONTRACTqR, In addition toany other mateda brea~hi Pailum b make any paymen.~ to the’re.r!..o~. Emplo~.e Fiihge ’Benefit Trusts, Ind..udlng, bu.t not .!lmlted .to,.Hea_lth. and. ~W~r~e,Pension, Vacation, or Apprenl~cesNp Trust shall also De a matenal Dreecl~: With respect: Im any one all payments to De maae Dy ~UN~,~UK mSUBCONTRACTOR under this Agreement, ¢ONTRACTOP~ at I~ option may is~Je’Jo!.nt checks payable to S.UBCON.TRACT?R an.d a.nY..bust referr.ed to he.r.eln,or-to a second tier subcontractor or material supplier to the exten~ ne ~cessaty to assure the payments required to be mac~e under this Agreement are palmH.3 CONTRACTOR may withhold or~ on account o~ subsequently discovered evidence, nulli~ the whole or a part of any payment’ under SECTION ~, tosuch extent as may be necessary to protect. CONTRAlti’OR from loss~ lndud[ng cost~ and actual aLtorn~ys’ fees Incurred if good faith on account of {1)defective work not remedied; (2) claims Ned or reasonab e evide.nc.e Indicating probable .filing. o1’ dalm; (3) failure of 5UBG3NTRACTOR to make paymenl~properly to Its subconl~a~tors, or for mater!el, labor, or fr!nge berielql~; (4) a..reesdnable doubt that this .Agreer0ent can be cGmpleted for ~e balance thenunpaid; (5) damage to ano~er subcontractor; ~6) fallore of SUBCONTR:AC3"ORb~ complete the contact Ih accordance wE’h the Contract Documents; (7)unsatisfactory performance Of the w~tk by the SUBCONT.t~.C1"OR, liens, clalm~ or stop notices flied by sUBCONTRACTOR, or SUBCONTRA(.q’OR’ssubcontractors or material suppllers, unions or similar dalnian!~,

H.4 Should one or more contracts now or hereafter exist between the parties he.rcto or with an at~llated col~poral~on or company of CONTRACt"OR,concerning this or any Other construction proJecEs, l~en a breach by the SUBCONTRACTOR of any contract may, at ~e option of the CONTRACTOR, beconsidered a bre~ch of all contracts, in such event CONTRACTOR may terminate any or all of the contracts s~ b’reach~, or may withhold monies due, or tbbecome due, on such contracts, and apply the same ~oward payment of any damages suffered on that or any other contract,

I.~. TERMINATION OF AGREEMENT - In the event the comp[ellon~ ~UBCONTRAC’ITOR shal be entitled onlyto payment for the work actually competed by It at thedamages on aocount of such te~mlnation; In whichactually received aS Is equltable under alladditional compensation or damages lh the eventprosecute any such dalm against OWNER shall not

1,2 Notwithstanding the preced!ng paragraph~ CONTRACTOR reserves the absolute right to terminate this Agreement. In the event of terminationonly as follows:

the Agreement} ’

for o~erhead and profit. .thls paragraph the amount of any paymenl~ made b~ 5UBCONRACTOR prior to the date of

not be entlti~ to any rialto, o~ claim of lien,, against CONTRACTOR ~r against OWNER for anyaddllJonal compensatlon .or damages In the eveht of.such.tel:m na~lon, and payment, In the event thls Agreement Is teMNnated for cadse, SUBCONTRACTORshall not be en~tled to receive ari~’ further paYmeht., unt ~lie work undertaken, by CONTRACTOR. . In Its p.rime contract Is completely finlshed,. At that time, ifthe amounts esm~d but ~ot paid SUBCONTRACTOR beforethoter. I~ln~.tlon exceed the expenses Incurred 6y CONTRAC3"OR In finishtMg SUBCONTRAC3"OR’SWork, any ~xcess shall be paid by CONTInUal’OR ~o SUBCONTRACTQR; bu~ tf the ekpenses shall¯ exceed lhe am~nt earned and unpaid by

- tie SUBCONTRACTOR shal "promptly pay to CONTRACTOR the amount by which the expenses exceed the unpaidSUBCONTRACTO..R...,a..t,~e time of terml.n~ n, " " ’ terlals for llnlshln the worl~ ~r actual attorneys’ and consultant’. ":""~: " ":.~ "~" e b CONTRACTOR shall Indude costs ~0r furnishing ma ,. g , .

j. ILABOR RELAT,~ONS -’ Employment of’ labor, by SUBCONTRACTOR she! be effected und.e,r condltler~ which are satisfactory to CONTRACTOR.SUBCONTRAC-’TOR shall keep a represeptatJve at the jobslte dudng all times when SU!~ONTRACTOR.8 work ts In progress, and suchrepresentative shall beauthorized to represent SUB -(~3NTP, ACTOR as to all phases.0f thelwo¢l~. P.d0r to commeni~ement of the work, SUBCONTRACTOR shall hoidfy CONTRACTORwho SUBCONTRAGI"OR’S representative ls to be, .and In the event of amy. ch.ange of representative, 53JBCONTRACTOR ~h.all Immediately "nottlf~yCONTI~GTOR wl~o the new representative Is to be pr.or to sudl change becoming L~ffe~’dve.

SUBCONTRACTOR acknowledges that .CONTRACTOR has entered 6to labor agreements covedng w~rk at Its con¢lzu~on Job sites with the following labor.unions; Carpenters a~ Laborers.

f theSe labor agreer!len~ set forth above insofar as SUBCONTRACTOR may~,1 AgteemenLs setti~ forti~ tile Judsdlct:lon and the scope of work

. at Its own cost and k~,~.~.~3~ of CONTRAL-3"O~ l:o t~ke.I~" the National ~.~Y~,~ SUBCONTRACTOR ~umertheir union and the1# sub:~bcontractors’ ~nlon as a condition prior

reserved gate for the suBCQNTRACTOR’S purposes, It shallof it’s work wltliout interruption or delay, ~ould SUBCONTRACTOR’S

b~ar.tb~,fu~l, co~

awards, fines or Ndgments a~

Exhibit

Attachment. ’D’

further promises and agrees that it will bind and require all of its subcontractors and their subcontractors performing Jobslte work of the typ.e covered bythis Agreement, to agree to all of the i’oregolng promises and undertakings, to the same effect as herein provided with respect to SUBCONTRACTOR.

K. I.~YOUT RF_.~PONSIBILITY’- CONTRAC’I"DR. shall ~tabllsh prlndpal axis lines and levels whereupon SUBCONTRACTOR. shall lay out and shall besbtd~ly responsible for the accurac,/o1: Its work at~d for any. loss or damage to other contractors" engaged In work on the site by reason of failureSUBCONTRACTOR to set out or perform Its work correchy. SUB(~ONTRA~II)R. shall exerdse prudence .so’ that actual final condl~ons and details shall resultIn perfect alignment 01’ finished surfaces,

L, . WORKM.~ISHIP -.Every part of the work herein ddscrlbed,s~ll b~ ekecu~.ed in stflct aocordance with the Contract D~uments I~ the most sound,workmanlike,.and substantial manner .All Wi~rknianshlp. shall be the best of Its kind, and all materlaL~ used In the work he.reth described shall be furnishedin ample quantif[ies to fa.cllltate the proper and expeditious execution Of the work~ and shatl be new and the .best of’ their respective kinds, except suchmaterials as ma~’ be expressly provided in the -Contr.act Documents to be otherWrse,

I~1. PROVI$’rON FOR: I"NSPECI~, ON - SUBCONTRACTOR shall Furnish .to CONTRACTOR. and Its represent,~tives ample ~cllltles at al! times ForInspecting materials at the site of" construction, at the shops, or any place where materials under thls Agreement may be in course of preparation, process,manufacture or treatment, SUBCONTRACTOR. shall further furnish to ~:ONTRACTOR as Often as requllaed, full rel~ol~ of the progress of the work at anyplace where materials l~nder this Agteeme~may be.In the to.urea of preparation or manui’acture; tho reports shall show the progress of such preparationand manufacture In su~:h details as may be required by~ONTRACTO~ Including a,y plans, drawihgs ol’.diagrams In course of preparation. The making orfailure to make any Inspection o1’ or payment for or acceptance, of" ~e. materials shall net Impair CONTRACTOR’S right to later..reJe~ nonconfomnlng

"materlals~ or to avail Itself of any other remedy which CONTRACTOR m~y be .endt!ed~ notwithstanding ¢ORTRACTOR.’S knowledge of the nonconFurmlty~substshtlatlty, or. the ease o/’ i~s dL~c~very. SUBCONTRAUI’OR. shall liable for all Inspection, reshipment and rerun1, cos~ on .nonconforming materials.SUBCONTRACTOR shall not replacereturned materials unless so directed by.CONTRACTOR In walling. ¢ONTP, hiL-TOP, shall retain all dghts grant~l hereinnotwithstanding the provisions of Paragraph N of this:Agreement:.

N. MATERIALS AND EQUZPIffENT - ]~n t~e event the scope of work Indudes Insti~tlation ~r materials or equipment ~urntshed by others, It shaJl be theresponsibility or SUBCONTRACTOR tO examine the !terns ..provlded~ and h~ndle~, slate and install ~:he name.with such skill and Care as to ensure a satisfactoryInst~llation. Lo~s or damage due ~o acts. of SUBCONTRACTOR shall be charged to the account of SUBCONTRACTOR and deducted from monies due underthis Agreement. ’ . " . ~. ’

Title to any goods or mater!a! ll~tefided to be In.~.rpora~ed Into th~ 15roJ~!:~ ~hall pa.s.~ to.¢ONll~4,CTOR o.nce the go~ds at" materials are’capable of beingidenN1ed as Intended for the Project~ but SUBCONTRACTOR sh~ll be requlred.tb malhfaln insurane.e on and bear the riskof loss of or harm to any suchgoods and materlals~ as elsewhere set £orth In this Agreement, for any and ~11 apNIcable time p~odsz I~ut in any eve.~lt, until completion of the Project, asdefined In the Conh’act Documents The prOvls ohs of thls paragraph Shall no~ nq!li~ or modify any o~l~er provisions of this Agreement, which shall r.ema’ln infull force and effect.

O, ’ PR,OTECTZON OF WORK - SUBCONTRACTOR shall effeC~ely secure and prob~-cl: th~ wq~’k done pu~ua.nt to this Agreement and assume ~ullresponsibility For the. condition of its work un~l final a~eptance by ARCHIT.E’cr, OWNER, and ~;ONTRACT’OR, SUBODNTRACTOR Further agrees to providesuch protection as necessary to protect the wo~..and the.workers of the CONTRACTOR and other subcontractors from its .operatlor

SUBCONTRAGTOR shall be liable I~or any loss ordemage to any work In place or to any equipment and materialson the Jpb site caused by it or Its agents,employees ~r guests. SUBCONTRAUI:OR shall promp6y repair or replace any damaged work, property or materials.

P. USE OF CONTRACTOR’S EQUIPMENT -. The SUBCONTRACTOR, 11~ agents, employees, subcontractors or suppliers shall not use theCONTRACTOR’S equipment without the express wdtten peri~lsslon of the CONTRACTOR’S designated i’epresentatiGe, SUBCONTRACTOP, shall be fullyresponsible for and Shall be deemed to have Inspec~.ed any such equipment .and accepts the use of such equipment.as Is.

If the SUB~ONTRAC’FOR, Or any of Its agents, emploYe,es~ suppliers, or subcontractors utilize any machinery, eq~lpmen~ tools; ~affotdlng; holsts~ I! .fts,.orsimilar Itorns, owned~ leased or under the conti’o! of CONRACI’OR, SUBCONTRACT.OR shall ac~ as an Independent contractor ano .snail ba pnm~lly liable to.r.any loss or ~larnage (Inclodlng personal injury or dffath) .Which may adse from su~:h use. regardless of who i~ operating any of CONTRA~OR S equiprnenctinder SUBCONTRA.croRfS con’~ol, and.shall fully Indemnify and hold CON3"RA~.3’OR. h,armless; pLlrsuar!t to the provNons of Paragraph B of this Agreement,from any loss, claim, IlaNIIty, daraage, co~, expenses, Incloding.actual attorneys’ fee~ Incurred In gaod faith,, awa~s, fines dr Judgments arising by reasonof such use.

q.l. SPECIFIC CLEAN- UP - Dudng the course of constrUChon,.SUN2OblTRACTOR shall remove’w.a.st~ materials from ~e stte as often as .Is necessaryto.maintain the premises in a dean and brderty condition. Upon completion of~e work under this Agreement;, SUBCONTRACTOR shall ramdve from the siteall temporary stru~ures, debris and wast~ In.ddent ~l ~IS

op,erat!On ah.d..c.le~.a al!_s,o .ffaces,~)x, tiJm~.,,_ .~,,.~lpm.ent, _e~i_~l~t_.lv~_to.t~..e’ perform.a, nc.e

Agreement. If SUBCONTRACTOR ~alls’to pertorm a oean-up function wlm{.n ~0 (:z,~ oays a~er nouncauoh rrom F,..ON.IRA{~ U~ wn~en or Oral, ~o ao o,CONTRACTOR, may proceed with t~at- fun~don as it judges neceBsai’y In the m~iner It m~/deem expedlenI~, and the cost thereof sh~l! be charged toSUBCONTRACTOR and dedl~t:ted from nlonies due under this Agreement, . ¯ " .

(~,2 GENERAL CLEAN-. UP- OULlr)g the course o~’.cor~tru~on the CONTR~,CroI~ will be performing "general" clean up on a dally basis; These deanJupcosts will be (Jlstributed back l~o the ~3Ji~CONTRACTOR$ based on your’ p~o- ~ata share of manpower on the sll~e in relation to thetotal.

I~ 6UARANTEi~ - SUBCONTRACTOR guarantee~ all mateflals and Workmartshlp and agrees to replace at its sqle cost .and expense~ and to thesatisfachoti of CONTRACTOR, any and all materials adjudged defer-.ttve or Improperly Installed as ~vell a~ guarantee the OWNER and CONTRACTOR againstIlablllb/, loss or damage adsln~j from the Installation of the work daring a peflod one (1.) year from completionand acceptance of the work covered by thepdme contract. If however~ the period of guarantee In the Contract Documents exceeds over one (1) year~ SUBCONTRACTOR Shall bebound during thelonger period ~pulated. SUBCONTRACTOR sha!l further’~uarantee the materials and workmanship. Of a!l repair work done pursuant to thls provision for a~eriod o~f eighteen (18) months after the repalra ate p~fforrned.

Subcontractor".~

........ E..xh.ibit D- !P .. Attachment ’D’

, RECEIVED

’ SubCOntractor ~ 11

Attachment ’D’Exhibit _,~__-. I I ..................

,Subcontract Agreement

Building ANovato, CA 94949Phone: (415)456-8972Fax: (415) 459-0665General ContractorLicense Number 626859

Subcont~ctNo.283 C02810S

THIS AGREEMENT, made and entered into at Novato, CA, this 7th day of December 20Q7, by and betweenWest Bay Builders, ]:nc., hereinafter called CONTRACTOR, with its prindpal office .at 250 Bel MaHn Keys Boulevard,Novato, CA, and Green Growth Ii~dusti’-i~s, Inc:~ 57 California Avenue, Suite J, Pleasanton, CA 94566 hereinaftercalled SUBCONTRACTOR.

RECITALSOn or about the 20th day of November, 2007 Wes~ Bay Builders, Inc., CONTRACTOR entered into a prime contract withCity of San .lose Department of Public Works, hereinafter called OWNER, whose address is200 East Santa Clara Street, 6th Root, San Jose, 95~113r to perform the following construction work, hereinafter calledPROJECT:

Happy Hollow Zoo and ParkZoo and Attractions Package

1300 Senter. RoadSan Jose, CA 95113

WBB #283Said work is to be performed in accordance with the prime contract and the plans and.specifications. Said plans andspecifications have been prepared bY or on behalf of The Portieo Grou[~, ARCH~-I’ECT, whose address s15400 4th Avenue, 3rd Floor, Seattle, WA 98101.

SECT~OtN 1 - ENTIRE CONTRACT

SUBCONTRACTOR cer~fies that it is fully familiar with all of the terms, condition~ and obligations of the ContractDocuments, as hereinafter defineci, the location of the job site, and the conditions under which the work is to beperformed, and that it enters into this Agreement based upon its reasonable investig~tio~ of all of such matters and isin no way relying upon any opinions or representations of CONTRACTOR~ This ~greement represents the. entireagreement. The Contract Documents are incorporated into this Agreement by reference, with the same force andeffect as if they were set forth at length herein, and SUBCONTRACTOR and its sub~ntractors will and are bound byany and all of the Contract Documents insofar as they relate in any part or in any way, directly or indirectly to the workcovered by this Agreement. SUBCONTRACTOR agrees to be bound to CONTRACTOR in the same manner and extentas CONTRACTOR is bound to OWNER under the Contract Documents, to the extent the work provided for in thisAgreement, and that where, in the. Contract Documents reference is made to :CONTRACTOR and the work orspecification therein pertains to SUBCONTRACTOR’S trade, craft, or b/pe of work th~n such work or specification shallbe interpreted to apply to SUBCONTRACTOR instead of CONTRACTOR. In the event of any conflict between therequirements of the prime contract and this Subcontract, the SUBCONTRACTOR sh~ll be governed by the provisionsimposing the greater duty on the SUBCONTRACTOR. The phrase "Contract Docume .r~s" is defined to mean and Includethis Agreement, together with any exhibits or addenda thereto, the prime cor~tract, together with its general,

~l~ supplementary and other conditions, addenda and. m, odifications,~plans and spedficati~ns. ~.~,~_ ~x~,~~f~- ~’~’~’

sEc os’ Z "SUBCONTRACTOR agrees to furnish all labor, services, materials, installation, cartage, hoisting, supplie~, insurance,equipment, scaffolding, tools and other fadlities of every kind and description required for the prompt ano efficientexecution of the work described herein and to perform the work necessary or normally performed bySUBCONTRACTOR’S trade or incidental to complete landscape, irrigation, palm tree re-location, crushed stonesurfadng and miscellaneous site furnishings and g~-eenroof planUng and irrigation for the project in strictaccordance with the Contract Documents and as more particularly, though not exdusivety, spedfiecl in Section(s):02483.-Treeand Palm Relocationr 02505 - Crushed Surfacing~ 02810 - Irrigation, 02870 - SiteFurnishings, 02920 - Soil Preparation~ 02930 - Trees, Palms, 5hrubs~ and Ground Covers, 02950 -Sodding, ~7-~L40~-.-R~ ~ ,., ’ .........

Subcontractor

Exhibit "E" Attachment ’D’

B5/19/2BB9 17:47 9254844985 GREEN GROWTH IND PAGE 03/05

Page 1 of 2

Lisa Eckholm

From:To:~lent:Subject:.

"Clayton Fraser" <[email protected]>"Lisa Eckholrn" <lisa@greengrowthindustries,com>; <[email protected]>Thursday, June 05, 2008 10:31 AMRE: Happy Hollow Zoo

Lisa and Roger-

This request continues to be ignored. I need to get a bond from you on this~ project, There is no way aroundit. Our bonding company is demanding it, Therefore, I ne.ed you to get a bond, provide me with the invoiceand I wiil get you paid for it immediately,

Thank You

Clayton FraserChief EstimatorWest Bay Builders, Inc.250 Bel Marin Keys Blvd., Bldg. ANovato. CA 94949(415)456-89"/’2 fax 459-0665

From; Clayton Preset~ent= Thursday, May Of, 2008 10:12 PHTo; ’Usa Eckholm’Subject; RE: Happy Hollow Zoo

Lisa-

1 thought I could get it waived but they are adamant that we need to get this from 5 key subs and you are oneof them.

My han~ls are totally tied’ and there is nothing I can do. So I need yQu to do whatever, you need to do to getthis bond, Otherwise, we may need. to find another landscape contraotor who can,

Thanks

Clayton

From: Lisa Eckholm [mailto:[email protected]°m]Sent: Thursday~ Nay O:t~ 2008 1:1:18 PHTo’- Clayton FraserSubject= Re: Happy Hollow Zoo.

C.I a },to n, :

I’ve been meaning to call yOtt, the last thne we spoke you were going to talk to your insurance and get this

wai,ced a,t~d you indicated to me that itwould not be an J, ssue;

GG! does not have a bonding relationship as of yet, you should be able to ¢ommunkate with your

Exhibit "F" 5/I 8/2009Attachment ’D’

05,/19/2009 17~47 9254844985 GREEN GROWTH IND PAGE 84/85

Page 2 of 2

broker letting them. know that WBB g~ GGI have completed severat prelects toBether and we as asubcontractor vdI1 continue to complete quality proieets for your com,pa~ay based on past h.~story, ~ao! tome~atio~ how I..i,I.,O()ONNNGGG vie. ~,ait tO get pa~d (ha hal So pier, so go to bat I:o~’ us! let me knovi i¢. I

can help,

Thank you!t.isa Eckholm

~-- Origi ha! Message ---From: C__l a.y_Lo n_...F..r a_s _e. rTo: roger@_qree.n_._qrowthindustries-com ; Lisa EckholmSent: Thursday, May 01,2008 2:42 PMSubject: Happy Hollow Zoo

Roger & Lisa-

have been asking for months now to get a performance bond from you for this project and have not heard

word one.

It is a request straight from our bonding company, They have directed us to get 5 bonds from 5 of thelargest subs on this job and Green Growth is one of them.

Please piovide this immediately and forward a copy of the invoice so I can issue you a change order for

the cost,

Thank You

Clayton FraserChief EstimatorWest Bay Builders, Inc.250 Bel Matin Keys B|vd., Bidg, ANovato, CA 94949(415)456-8972 fax 459.0665

Exhibit "F" .5/,I 8/2009/~Eacnmem

GREENGROWTH IND PAGE 85/85

Page l of 2

Lisa Eckholm

From: "Clayton Fraser" <ClaytonF@westbaybuilders,com>To: "Lisa Eckholm" <lisa@gtee ngr°wthindustfies ’c°m>

Sent: Friday, ~lune 27, 2008 2;’14 PMSubject: RE: HHPZ- Bond

Lisa-

I am willing to meet with you but I am not sure what you want to talk about. If it to try and persuade me toallow you to not get a bond, we don’t need to meet. I have no control over this. Our bonding company hasdemanded we get it so 1 need to get it.

Let me know,

Chyton FraserChief Estimator

WEST BAY BUILDERS250 Bcl Matin Kcys Blvd, Bldg ANovato CA. 949494l 5-456-80724l 5-459-0665 (fax)

From: Usa Eckholm [mailto:[email protected]]Sent: Friday, 3une 27t 21308 2:07 PHTo: Clayton FraserSubject: Re: HHPZ- Bond

1 am requesting that we get together a.nd .have a meeting rega.rd[ng Lt~e bond. [liar you are r~quirlng, I alsoneed to meet w/Lee preferably the same day. Let me kBow when yott are available and I wiil also bring

the contract, ..

Respectftdly,

Lisa EckholmGreen Growth lndustd.es

.... Odginal MessageFrom: _C..La.y t_q D_ -F. r a-s--e£To: Lisa Eckholm ; rog~.r@, tg~e.ng£owthindustries-comSeni: Friday, June 27, 2008 9:02 AMSubject: HHPZ- Bond

Still have not heard or seen anything from you on this project and the bond. Please get back to me ASAP.

Exhibit"FVA~!1812009 ’D’tachment

Attachment E

Timothy L. Mclnemey

LAW OFFICES

NclNERNE¥ & DILLONPROFESSIONAL CORPORATION

1999 ~IARRISON STREET ’ SUITE 1700

OAKLAND, GALIFORNIA 9z1612-~ 70 0TELEPHONE (510) 465-7100"

tAX (510) 46B-e}[email protected]

May 26, 2009

City of San JoseCity Facilities Architectural Services Division200 East Santa Clara St.," 6~ FloorSan Jose, California 95113ATTENTION: Glenn Rock

Via Fax: (408) 292-6288 & E-mail

RE: Hearing on West Bay Builders, Inc.’s Request for SubstitutionHappy Hollow Park & Zoo: Response to Green Growth Industries, Inc.

Dear Mr. Rock:

This responds to information received May 22, 2009, from Green Growth Industries, Inc.("GGI") regarding West Bay Builders, Inc.’s ("WBB") request to substitute GGI on this project.

GGI’s arguments are without merit. While important, GGI’s failure to provide a bond aspromised is not the only issue. The significant issue is GGI’s failure to execute a subcontractprovided to it in compliance with the general terms and conditions and GGI’s bid after beinggiven more than sixteen months to do so.

Pursuant to City of San Jose’s Standard Specifications, Section 2-1.15B, this failure alonepermits this subcontractor substitution.

GGI was Provided a Reasonable Opportunity to Execute the Subcontract andProvide a Bond.

WBB sent GGI its standard subcontract on December 7, 2007. (Exhibit 1). The coverletter specifically stated "Please do not alter the contract without discussing any changes with mefirst." The contract and cover letter required GGI to execute a bond if requested. WBBrequested two bonds from GGI. GGI responded that it would contact its agent regarding a bond.

WBB made numerous attempts to get GGI to sign the subcontract and provide a bond as

Attachment ’E’

promised. WBB wrote letters and emails to GGI from December 2007 to December 2008.(Exhibits 2 thr6ugh 13).- WI3B also made multiple phone calls to GGI. (Exhibit 14).

On January 16, 2008,GGI informed..WBB it had almost w0~ked out the bond issue andwould like to get a bond to WBB as soon as possible. No bond was ever provided and GGI itid notreturn the subcontract until sixteen months later. Material changes made to the subcontractprompted this request for substitution.

GGI Materially Changed the Subcontract Despite its Compliance with GeneralTerms, Conditions, & the Terms of GGI’s Bid.

When WI3B’s subcontract was finally returned, GGI had made significant changes to itscontent. As indicated in GGI’s Exhibit D (whether by comments or by additions being struck out);these changes were unacceptable to WBB.

GGI changed the payment schedule to contradict the City’s payment schedule to WBB bydemanding payment every 30 days regardless of the City’S withholds to WBB. GGI modified theterms to require paymentin full, including retention, upon "final.inspeeti0n" of GGI’s work.(Exhibits 15 through 18). GGI’s proposal dated August 9, 2007, does not address payment.(Exhibit 19). .

GGI altered critical insurance requirements and limits provided for in the subcontract.WBB’s subcontract required GGI to carry General Liability Insurance not less than $2,000,000 foreach occurrence and not less than $8,000,000 in the aggregate. (Exhibit 20). These limits wereless than the City requirements of $5,000,000 and $10,000,000 respectively. (Exhibit 21). GGIdeleted minimum coverage requirements entirely and modified requirements for CommercialGeneral Liability insurance to state "GGI will furnish the following insurance" without amounts.(Exhibit 22). GGI’s proposal does not addressinsurance. (Exhibit 19).

While GGI’s ¯August 9, 2007, proposal notes the base bid excludes "Permits/Bonds,"’ thesubcontract cautioned GGI that execution of a bond would nevertheless be required if requested.(Exhibit 23). WBB requested a bond immediately and GGI promised a bond would beprovided.When finally returning the subcontract after sixteen months, GGI deleted the bonding requirementin its entirety. In light of GGI’s promise to provide a bond, the deletion is unacceptable.

C. Substitution is Necessary Despite Limited Labor & Materials Provided by GGI.

GGI provides no authority for its assertion that because GGI provided limited labor andmaterials to the project WBB is not entitled to this substitution. City of San Jose StandardSpecifications, Section 2-1.15B contains no time limit for a subcontractor substitution request.(Exhibit 24). WBB could notknow GGI would renege on its promise to provide a bond and wouldnot return the subcontract for sixteen months. Any Change orders issued toGGI were requested by theCity and provided to GGi so GGI could obtain a bond as promised. WBB simply made every effort .toavoid delay to the project. " ..

For the -foregoing reasons, WBB is entitled to this subcontractor substitution.

Attachment ’E’

Very truly yours,

McINERNEY & DILLON, P.C.

Enclosures.

Katy Jertsen, City of San Jose Department of Public WorksClayton Fraser, West Bay Builders, Inc.Roger Eckholm, Green Growth Industries, Inc.H. Paul Bryant, Law Offices of H. Paul Bryant

Page -3-

Attachment ’E’

December 7, 2007

GREEN GRO.WTH INDUSTRIES, IN(:,57 California Avenue, Suite .1Pleasanton, CA 94566

I~: #2.83 --" HAPPY HOLLOW PARK & ZOO - ZOO & A ~CTZONS

Enc!os~d for revlew and: slgnature is the Subcontract Agreement for the’ above-mentioned project, We ask that the executed, contract, be retu~ to eurioffice as soonas ~lble, :,Up6n.,r._e~ip~..W.~ wIIi., rd a tully execut ,d

--We requlre the necessa~ Certlfl~tes: of ~nsurance .coverln9-Ge.nb~ .Uab.lllb/:Automoblle~and Wo~r’s CompensaUon as detailed in Section 8.to the Sutx:ontra~:Agreement, All. subcontractors must be able to provide payment and labor/materials,bonds If they-are-requ~ted: Please proceed immediately wi.th submittals, and shopdrawings as required, p~r the contract documents and forward them to our office assoon =aS .poss!bl#. Subcontractors will not be allowed on the job-site until"~theaforementioned requirements an

Your progress b!lllngs~ certified payroll reports and/or ~ments of n~n-performance,for your company and all your tiered subcontractors/suppliers must be submltt~d to ouroffice by the 20th of each month.

Each month, you musL also submit an "Unconditional. Waiver Upon .Progress Payment"from your company and all lower tiered subcontractors/suppliers, At. tht~ conclusion ofthe. project you must endorse the standard West Bay.form entitled ~Appllcation: for Fulland Rnal Payment" as a condition precedent to final payment. Submittal of~CondltionalWaivers. upon Progress Payment" for: the current. period from your company and alllower tiered subcontract0~¢~.i~r.~ ~.. ~1S6 required; In addition, If applicable, you.must submit Union Status !L~.~s:::as de~ie~ In Section 4 of the Subcontract Agreementand paragraph J of ~he Ge~!’.":Su~c.0.fft..~.~: Provisions. Failure to submit the necessarypaperwork will delay progress paymenil~, Please.use the forms included wlth .this letter.

If you have any questions, please call me.

~n Fraser

Attachment ’E’

CONTRACTOR agrees to pay SUBCONTRACTOR for the strict performance el= its work, the sum ofone million, five hundred...., seven~.-one.. . ¯. thousand, six hundred, thirty-sevens, and No110O dollars($1,571,637), subject to additions, and deductions ~er changes in the work ~i~ may be agreed upon, and to makepayment in accordance with I~e Payment Schedule, SeCUon 4.

.G’TI.( N -. PAYMENT.SCHEDULE rP~5 4 meN~ ~V " - .~TRACTOR agrees b~ pay SUBCONTRACTOR in monthly paymen~ of 90% ~o~ ~/~’~nn-ri..~t~als. wn,,.,~ .,,.~. ~

~’: i " ~ " " " " ’ ~ ~’~~aCed n poslUon and for wh,m the right b~ payment has been propedy doCkS"of this~.elTn~.e.n.~ No payment made prior (:O compleX:ion and acceplxnce ot= :~e ~~..’’:-~;~m. of an- -~art: of SUBCONTRACTOR’S o" ’ ......~-.."¢a~__ ~. Y ~2 ......a . .w r~. v..a..ymen~ m connngenc upon SUBCONTRACTOR pmwdmg iD~: -~: west tsay ~u,aem, *n¢. conamonm, ann unmnmtbnal lien releases (cop es attached), insurance certifica{~{"~i~Sh’ gtaL’us letters, and it~-certified paym S’F0r ahy br~d all oi’ its vendors add subcontractors bv,ohl~:.being biiled for, as applicable. Further, un~ondlU0nal lien releases signed by SOBCo

proof ol; payment through the effec’~Ve Brae period in the body el= the release. CONTRACTOR shall be entitled, b~ usesaid releases as pr60~ of~payment Ir~ ~U!I fo~ theef~ecUve time peff0d~ effective y barrihg~ late submitted certified payroll,change orders and. any claims for ~dditi~Dff.! compensation, unless dalai ed specifically in writing on the ~ace of therelease and in accbrdance with I:he ~bb~ntra~ pr0vision~; including submissions deadlines. ,,A,t the conclusion of tl~eProject SIJBCO .NT_’_’_’_’_’_’_’_’_I~;.Z..Cq’OR js:mquired t0~rid0i:Sa the .s~ndard CONTRACTOR ~onn entiUed Appllcation For Full ’andFtnal Payment" asa Cbnditiori precedent i~ final paymed!~ ’

SECTZON 5 - WAGE RATE DECISIONS / PREVAILING WAGE / CERT~I~ED PAYROLL REPORTS

:.SUB-O3NTRA~bR:rg:~bh~sible for following idie guidelines of bhe California Labor Codes, including overtime hours,a~.~lJ~ n~q’iJi~nf~;~.~-,. (Attached is an excerpt o1’ the Labor Codes For SUBCONTRACTOR to review and lnilJal).Tffe: ~eh~l-W~B~ D_ect~ien iapplicab’e to th~s contract is: California Director of Industrial RelationsCounb/of Santa Clara for 2007-! until superseded by a new determination issued by the Director of Indus~alRelations. SUBCONTRACTOR. agrees to submit ce~fled payroll reports to CONTRACTOR no later than three (3) workingdays after labor has been paid:

SECTION 6 - GENERAL SUBCONTRACT PROVISIONSThe General Subconl~ac~ Pmvl~ions are.an inP_-=gra~! part o~-this Agreement.

SECT£ON 6.1 - EXCLUSIONS¯ Hot or cold taps (~ I~¯ Water meters~/.~t~p~!~ oF- M~e~¯ Xmpo~ top~il¯ Off ~aul of debris or spoils¯ Demo worE¯ Ele~HCal work¯ ~b~i~/.~nds¯ Watering and/or maintenance of existing lands~pe during constru~ion¯ P~ast s~ wall¯ Bac~ow¯ Concrete work- ~le~ rock¯ Tree pmte~ion¯ T~e ~mming¯ T~e ~moval / ttansplan~ (excep~ palm trees)¯ Coring~ boring~ drilling, cu~ing~ patching, digging through or hauling of AC, con~e~ or

~k¯ Tra~c con~ol¯ Erosion .~nt~l ~¯ Signage b~V ~~ ~.~¯ Tre.~ plating

¯ Clearing and g~bbing- ~parlan Woodland planting and irHgaBon¯ Ga~e Valve P.O.C,

Subcontractor

Attachment ’E’


250 Bel MatinKeys Blvd.Building ANovato, CA 94949’

Phone: (415) 456=’8972Fax: (415) 459-0665General ContractorLicense Number 626859

Subcontract No.283 C02810S

¯ THIS AGREEHENT, made and on,red into at Novato, CA, this 7th day of December 2007, by and betweenWest; Bay Builders, Inc., hereinafter called CONTRACTOR, with its principal office at 250 Bel Hadn Keys Boulevard,Novato, CA, and Green Growth Industries, Inc., 57 California Avenue, Suite J, Reasanton, CA 94555 hereinaftercalled SUBCONTRACTOR.

RECITALSOn or abouL the 20Lh day of November, 2007 West BayBuilders, Inc., CONTRACTOR entered ioto a pdme contracL withCity of Salt Jose Department of Public Works, ’ hereina~er called OWNER, whose address is200 East Santa Clara Street, 6th Root, San 3ose, 95113, to perform .the following construction Work, hereinafter calledPROJECT:

Happy Hoilow Zoo and ParkZoo and Attractions Package

1300 Senter RoadSan Jose, CA 95113

WBB #283Said work is to be.performed in accordance with the prime contract; and the plans and spedfications. Sa~d plans andspedfications have been prepared by or: on behalf of The Portico Group, ARCHEI-ECr, whose address is15400 4th Avenue, 3rd Floor, Seattle,.wA 98101.,

SECTION l - ENTIRE CONTRACT"

SUBCONTRACTOR certifies that it ls .fully familiar with all of the terms, conditions and obligations, of the ContrbctDocuments, as hereinafter defined, the IocaUon of the job site, and the conditions under which the work is to beperformed, and thai: ii: enters tnl:o this Agreement based upon its reasonable investigation of all of such matters and isIn no way relying upon any opinions or representations of CONTRACTOR. This Agreement rdpresents the entireagreement. The Contract: Documents are incorporat~l into this Agreement by reference, with the same force andeffect as if they were set forth at length herein, and SUBCONTRACTOR and its subcontractors will and are bound byany and all of the Contract Documents insofar as they relate In any par~ or in any way, dlrecfJy or indirectly to the workcovered by this Agreement. SUBCONTRACTOR agrees to be bound to CONTRACTOR in the same manner and extentas CONTRACTOR Is bound to OWNER under the Contiact Documents, to the exbent the work provided for in thisAgreement, and that where, in the Contrac~ Documents reference is made to CONTRACTOR and the work orspecification I:hemin pertains to’ SUBCONTRACTORS trade, craft:, or tvpe of work then such work or specification shallbe interpreted to apply to SUBCONTRACTOR instead of CONTRACTOR. In the event of any conflict between therequirements of the prime contrac~ and this Subconb’ac~ the SUBCONTRACTOR shall be governed by the provisionsimposing the greater duty on the SUBCONTRACTOR. The phrase "Contract Document~’ Is ciefined to mean and include

with itso diUons, eddenda

SUBCONTRACTOR agrees to furnish all labor, services, materials, .installal~on, cartage, hoisting, supplies, insurance,equipment, scaffolding, tools and obher facilities of every kind and description required for the prompt and effiden~execution of the work described herein and to perform the work necessary or normally performed bySUBCONTRACTOR’S trade or inddeni:al to complete landscape, irrigation, palm b’ee re-location, crushed stonesurfacing and miscellaneous site furnishings and greenroof planting and ir.rigatton for the projecL in sLrictaccordance with the Contract Documents and as more parLicu!arly, though not exclusively, specified in Se~on(s):02481- Tree and Palm RelocaUon, 02505 - Crushed Surfacing, 02810 - IrrigatlonF 02870 - SiteFurnishings, 02~20 - Soil Preparation~ 02930 - Trees.. Palms.. Shrubs:. and Grou.nd Covers, 02950 -SoddingF

"-, RECEIVED.AVI~ ~1 ~ ~Ub9 Subcontractor_~

WEST BAY BUILDER£, INC,

¯ Attachment ’.E’

¯ Rough grading (grade is to be received by SUBCONTRACTOR at-~- 1/10 of 1"-0" offinish grade and sloped to: drain) ~

¯ Surveying, bench marks~ radius points .~: 0~,¯ Fencing o~/ill ~’~l~e.~ 1"~./~o!-o.~ ~ oL 01~te~)~S F..

¯ copper pipe installatiOn and/or repair¯ Repair of landscape and irrigaUon damaged by others¯ Water feature¯ Drinking fountains

SECI’ION 6.2 - CLARIFICATIONS¯ Price of $22,411 accepted for F & I of Section 02505¯ pricing of $104,1!2 accepted for F & I of items A, B~ C, G~ H, I and J in Section 02870¯ Pricing of $187~737accepted for F & I of Greenroof Planting, lightweight soil and

irrigation per Section 07140

SECTION 7 -SPECIAL PROVISIONS

This notice required by Business and Professions Code 7030 is an integral part of this Agreement:Contractors are required by law to be licensed and regulated by the Contractor: State. License Board which hasjurisdiction tO investigate complaints against Contractors ill a :complaint is filed within three years of the date oF thealleged violatiori. Any questions concerning a Contractor may be referred to The Registrar, Contractors’ State UcenseBeard, P.O. Box 2600, Sacramento, CA 95826.Contractors are required by law to be licensed and regulated by the ~x>n~ractors" State License Board.Any questions concerning a contractor may be referred to the registrar of the board whose address,is:

Contractors" State License Board ~- 1020 ~N" Street~ Sacramento, CA 95814

SECTION 8 - INSURANCE

SUBCONTRACTOR shall, at his expense, procure and maintain insurance on all of his operations,, in companiesacceptable to CONTRACTOR, as follows: Worke~’ Compensation and Employer’s Liability ]nsurance. Workers’Compensation insurance shall be provided to ~he full extent~required :by state law, and shall include a Worker’sCompensation Waiver of Subrogation Endorsement (,this endorsement must be attached to the Worker’s CompehsationCertificate). Tf there is an exposure of injury to SUBCONTRACTOR’S employees under: the U.S. Longshoremen’s andHarbor Workers" compensation Act, the Jones Act or under laws, regulations or statues applicable to maritimeemp oyees, coverage shall be induded for such !njuries or claims. Employer’s liability insuranc~ shall be in an amountno less than $1,000,000~ each e.mployee for bodily injury and disease;

General Uability InsuranCe, SUBCON1-RN,-q’OR shall carry Comprehensive General Liability o~ Commercial GeneralLiability insurance covering all operations by Or on behalf of the SUBCONTRACTOR providing insurance for bodily injuryliability and property damage liability for the limits of liability indi~ated below and induding coverage for:

.1~:Premises and Operations2. Products and Completc~ Operations3. Contractual Uability Insuring the obligations assumed by SUBCONTRACTOR in this

Agreement4. Broad Form PropertyDamage (including Completed Operations)5. EXplosion, Collapse and Underground Hazards6. Personal Injury Liability

A. Limits of Uabillty - All Policy Forms1. If SUBCONTRACTOR carries Comprehensive General Liability Insurancei the limits of liability shall not be

$~l~,~)e-each occurrence N ~1~$8~;~;~;~aggregate ~//~ ¯ : ~ . ..

~,~. ~hl~f SUBCONTRACTOR_carries Commerdal General Uabillty insuran.¢~ the limits ofliability shall not be less

$~,000,000 each occurrence combined single I mit for bodily injury and prope~amage$1,000i000 for Personal Injury UabiliW$2~000,000 Aggregate for Products-Completed Operations$2,000,000 General Aggregate

The "general aggregate" limit shall apply separately to SUBL-’ONTRACTOR’S work under this contract.

Subcontractor~;~ "

Attachment ’E’

B. Special "C~aitns Made" and "Modified ,Occurrence" Policy Form Provisions. SUBCONTRACTOI7 shall not provideGeneral Uabilib/Insurance under a "Claims Made" and "Modified Occurrence" Commercial General Uability form.

Additional Insured. With respect to whichever General Uability policy form is furnished as required above:1. CONTRACTOR, ~ officers~ directors and employees.and OWNER and its employees ~nd other parties

as required by contracl: and the Architect shall be named as additional insured. The Products-Completed Operations coverage shall be maintained ~rough all required statutory periods applicable to theProducts-Comp!eted Operations coverage incius]ve of additional insured provisions in all flicure renewals ofthe coverage.

2. The policy shall be endorsed to stiPUlate that the insurhnce.afforded the additional insured shall, apply asprimary insurance and that any-other Insurance mairitained by CONTRACTOR or OWNER shall be excessonly and shall not be called upon to contribute with SUBCONTRACTORS insurance.

3. Coverage for the CONTRACTOR~ its officers, directors and employees and OWNER and its employeesand other parties as required by cohtact as additional insured shall b.e provided by a policy provision or byan .endorsement providing coverage at lease as broad as Additional Insured (Form B) Endorsement FormCG2010 (11/85) or its equivalent as published by the Insurance Se.~rvices Office (ISO)

Automqbile Liabili~ Insurance SUBCONTRACTOR shall carry automobile liability insurance, including coverage for allowned, hired and non-owned automobiles. The limits of liability shall not be less than $1,000,000. Combined SingleLimit each accident for Bodily Insure and Property Damage combined. "

A~ircraFc Insurance If the SUBCONTRACTOR or their lower tier subcontractors use any owned, leased, ~artered orhired alrcralt Of any type (including helicopters) in the.performance of this contract, they shall maintain aircra~ liabilityinsurance in an amount of not less than $5,000,D00. per occurrence including Passenger Uability. Evidence ofcoverage in the form of a Certificate of Insurance including additional insured status, as required by the general liabilitycoverage, sha!l be provided prior to the start of work to CONTRACTOR.

Pollution Llabilib/ If SUBCONTRACTORS are required to perform remedial hazardous matedal operations such asasbestos containing materials, contaminated soil etc., they must,, in addition to the above requirements, carry a"Contracl~r’s Pollution Uability" policy with limits not "less than $2,000,000 per occurrence and not less than$2,000,000. aggregate for Bodily Injury, Personal Injury and Property Damage naming CONTRACTOR and OWNER asan additional insured including contz-actual liability coverage. If SUBCONTRACTOR or their lower tier subcontractorshaul hazardous waste they must carry Automobile L!ability Insurance with a $2,000,000 .combined sing!e limit peroccurrence for Bodily~[njury and Proper~y Damage applicable to all hazardous waste hauling vehicles and include NCS90.

Professional Uabllity. A $1,000,000. Professional .Uabllity insurance pqlicy shall be carded if SUBCONTRACTOR or theirlower tier subcontractor is to provide design ’or design/build services to the project. Such insurance shall includecoveragL= for contractual liability. Evidence of coverage in the form of a Certificate of insurance, shall be provided priorto the start bf work to CONTRACTOR and such coverage shall be maintained for two (2) years following completion ofthe project.

,Certificates of Insurance A Certificate of Insurance including endorsements as required a’bove, as evidence of theinsurance required by this Agreement, shall be furnished by .SUBC~.NTRACFOR to CONTRAC1"OR before any workhereunder is commenced by SUBCONTRACTOR. CONTRACTOR reserves the right to. request and SUBCONTRACTORshall provide upon demand a certified copy of all policies of insurance required by this Agreement..The Ce~ficates of]insurance shall provide that there wilt be no cancellation or" reduction of coverage without thirty (30) day’s prior writtennotice to OWNER.

]n the event the SUBCONTRACTOR fails to maintain any insurance coverage required under this Agreement,CONTRACTOR may maintain such coverage and charge expense to SUBCONTRACTOR, or terminate this Agreement, orhold the SUBCONTRACTOR accountable for all costs incurred by CONTRACTOR as a result of SUBCONTRACTORSfailure to maintain the proper insurance. Upon written request from CONTRACTOR, SUBCONTRACTOR shall providecomplete policy or policies to CONTRACTOR within ten (:t0) days.

The required insurance shall be subject to the approval of CONTRACTOP~ and OWNER~ but any acceptance of insurancecertificates by CONTRACTOR or OWNER shall in no way limit or relieve SUBCONTRACTOP~ of the duties andresponsibilities by SUBCONTRACTOR In this Agre~nent. Zf higher limits or other forms of insurance are required in theContra~ Documents, SUBCONTRACTOR will comply with such requirements.

Subcontractor

Attachment ’E’

If SUBCONTRACTOR fails to comply with any of the provisions of his Section, SUBCONTRACTOR shall, at its own cost,defend, indemnify and hold harmless CONTRACTOP, and OWNER, (includihg their officers, agents, employees, affiliates~parents and subsidiaries) from and against a.ny and all liability damages, losses, claims, demand~,.actions, causes ofaction, costs, induding attorney’s.fees and expenses, or any of them resulting from the death or injury of any person ordamage to any property to the extent that CONTRACTOR and OWNER would have been protected hadSUBCONTRACTOR complied with all of the provisions of this Section.

Property Insurance Considerations. CONTRACTOR, OWNER and SUBCONTRACTOR waive all rights against each otherand against all other trade contractors, subcontractors and sub-subcontractors for 10ss or damage to the extentcovered by Builder’s Risk or any other property or equipment insurance applicable to the work, except such rights asthey may have tO the proceeds of such insurance.

In the event SUBCONTRACTOR makes a claim against CONTRACTOR’s Builder’s Risk or similar policy,SUBCONTRACTOR shall be solely responsible for any and all deductible amounts.

Failure of CONTRACTOR or OWNER to enforce i.n a timey manner, any of the provision of the Artide shall not act as awaiver to enforcement of any of these provisions at a IEter date in the performance of the Agreement. Any exceptionto the provisions Of this section must be delineated in the Contract documents;

SECTEON 9- PERSONN EL

SUBCONTRACTOR must provide experienced and competent personnel for sUpervisiom CONTRACTOR, at its solediscretion, may request to have field and/or management immediately removed and replaced with an individualacceptable to CONTRACTOR. Failure by SUBCONTRACTOR to comply within 48 hours of written notification constitutesa material breach of this subcontract agreement. If requested by CONTRACTOR, your company is required to completea SubcontractOr Daily Report Form (form may be provided) and turn it in on a daily basis. Payments wi[l be heid if theSUBCONTRACTOR does not comply with the request.

Force account work (time and materials) to be performed at direct costs plus allowable mark-ups per the contractdocuments. If no mark~ ups are spedfied, then the applicable percentage will be limited to the following: ~.)Totalallowable labor_ mark-up = 15%: for all overhead, supervision, and administration; 2) Total allowable for material and/oi" ;~ tier Subcorltra~tors markup. = 5%: for all overhead, supervision, and administration. West Bay Builders, Inc.~vi!i Only pay for la.bor .cO.sts Incurred at the jobsite. Travel time, delivery costs, parking, etc. are non-compensable andincluded in the allowable. tha~-Ups. SUBCONTRACTOR must receive written dire~on from West BayBuilders, Inc.notifying said SUBCONTRACTOR to proceed on a time and materials basis. All delivery tags for materials, equipment,and field labor must be verified by a West Bay Builders, Inc. field superintendent. U~ work orders for materialsand,/or labor will not. be oaid, nor will work orders for materials and/or labor although signed, but by non-West BayBuilders, Inc. personnel, be paid.

Stop Payment Notice - excessive, improper or erroneous stop payment notices filed by the SUBCONTRACTOR or 2ndtier subcontractors, SUBCONTRACTOR’s material suppliers, or SUBCONTRACTOR’S employees will result in a 15% feecharged to your account of the excessive, Improper or erroneous amount. This amount will be assessed to theSUBCONTRACTORS’ account ~ addition tO any related costs for removing such notice.

SECTION 10- PAYMENT

If the OWNER or other responsible party delays in making any payment to CONTRACTOR from which payment toSUBCONTRACTOR is to be made, CONTRACTOR shall have a reasonable time to make payment tO SUBCONTRACTOR;"Reasonable time" Shall be determined according to the relevant drcumstances, but In no event shall be less than thelongest period of t me required by either the CONTRACTOR or the SUBCONTRACTOR to pursue to conclusion their legalremedies against the OWNER or other responsible party to obtain payment, including (but not limited to) stop noticeremedies or other related and similar remedies.

If SUBCONTRACTOR asserts a daim which involves, in whole or in part, acts or omissions which are the responsibilityof the OWNER or another party, including but not limited to daims for failure to pay, an extefision ot~ time, delaydamagesi or extra work, CONTRACTOR will present the SUBCONTRACTOR’S claim to the OWNER o~ other responsibleparty. The SUBCONTRACTQR shall cooperate fully with the CONTRAC’qOR in all steps taken in connection withprosecuting such claim and .shall hold harmless and reimburse the CONTRACTOR for all expenses, including legalexpense, incurred by ¢_DNTRACT.OR~ which adses out of CONTRACTOR’S submission of SUBCONTRACTOR’S daim toQWNER or other responsible p~rt~. Afiy adjudication or award shall bind SUBCONTRACTOR tn any action or proceedingresolving such a claim. For any.claim a~serted by SUBCONTRACTOR to CONTRACTOR, at CONTRACTOR’s requ~st,~

Subcontractor ~-

/

Attachment ’E’

SUBCONTRAC]’OR shall provide a certification of claim under penalty of perjury in conformance with the ~alifomiaFalse Claims Act {Government Code SectiOn 12650 et, Seq,)

ZN WlINESS WHEREOF= The pa~des hereto have executed this Agreement for themselves, their heirs, executors,successors, administrators, and assignees on the day and year written beio.w.

West Bay.B

Contractor’s State.Ucense No, 662718 _ Contractor’s State Ucense No, 626859

~)~Corporatton r-]Partnership [] Proprietorship CorporatJon Partnership r-lPropdetorship

Date:~/’~,~/ . ~,~ 7_.0~ Date:Note: Failure to execute and return this co.tra~t within thirty days shall be considered your agreement’to perform the work on the terms stated herein,

WEST BAY BUILDERS; INC.

¯Subcontract:or ~ ¯

Attachment ’E’


Attachment ’E’

the.writingwork orders signed by our field personnel senm. only as athe work without written direction fromdirection from CONTRACTOR or any form ofdlre~...on, wdtten

has discovered theof the

~ or deduction~, without:

or in anyCONTRACTOR, for authorized extras is an express condiUon precedent to

Immediately submit to the CONTRAC’I’OR written copies of itsendar days from the date of the written no’doe of daim or as defined by the

be performed as ordered in writing by.CONTRACTOR and the

Attachment ’E’

paragraph will ba suffident and complete when mailed to SUBCONTRACTOR at the address shown in this Agreement," In the event o’f an emergencyaffecting the safety of persons or property: no notice referred to in this paragraph shall be required.

H,2. CONTRACTOR may also ter.minate this Agreemenic in the event of any other matedal breach of this Agreement by SUBCONTRACTOR. In addition toany other rnatedal breach, failure to make any payment to the Various Employee Fringe Benefit: Trusts, including, but not limited to, Health and Welfare,Pension, Vacation, or Apprentic~ship.Trust shall also be a material breach. With respect to any and all payments to be made by CONTRACTOR toSUBCONTRACTOR under this Agreement, CONTRACTOR at Its option may issue joint checks payable to SUBCQNTRACTOR‘ and any tru~ referred to herein,or to a second tier subcontractor or material supplier to the extent necessary to assure the payments required to be made under this Agreement are paid,

H,3 CONTRACTOR may withhold or~ on account of subsequently discovered evidence, nullify the who~e or a part of any payment under SECTION 4, tosuch extent as may be necessary to protect CONTRACI’OR from loss, indudlng costs and actual attorneys’ fees incurred if good faith on account of (1)defective work not remedied; (2) dal .ms’filed or reasonable evidence indicating probable filing of delta; (3) failure of SUBr_.ONTRACTOP, to make paymentsproperly to its subcontractors, or for material, labor~ or fdnge b~efits; (4) a reasunable doubt that this Agreeme{~l: c,in be completed for the balance thenunpaid; {5) damage toanother subcontractor; (6) failure of SUBCONTRACTOR to ~omplate the contract in accordance with the Contract Documents; (7)unsatisfactory performance of the work by the SUBCONTRACTOR, liens, claims or stop notices filed by. SUBCONTRACTOR, or SUBCONTRACTOR’ssubcontractors ormate.rial supp!iers, unions or similar claimants,

H.4 " Should one or more contracts now or hereafterexist between the parties hereto or with an affiliated corporation or company of CONTRACTOR,concerning this or any other consb’uction projects, then a breach by the SUBCONTRACTOR of any contract m.ay, at the option of the CONTRACTOR, beconsidered a breach of all contracts. In such event CONTRACTOR may terminat~ any or aft of the contracts so breached, or may withhold monies due, or tobecome due, on such contracts, and apply the same toward payment of any damages suffered on that or any other contract.

L~. TERMINATION OF AGREEMENT - In the event the prime contract Is terminated pdor to its completion, SUBCONTRACTOR shall be entitled only

prosecute any such claim against OWNER shall not entitle SUBCONTRACTOR tO-~r]y,..aa~m ro~ :a~muona~ c-ompensa.uQn.~’.o..arn..ag~,.~.at~

Notwithstanding the preceding paragraph, cONTRACTOR reserVes the absolute right to, terminate this Agreement, In the event OF terminationwithout cause, 5UBCONTRACI’OR shall be entitled to payment only as follows:1) ~ Of:th.e’wi~. it~:a. ~J~ll~Cqtlll~l.e~lnmnfo.rml.ty-v, Tlth the Agreement;

There shail b~ d~UL~ed~ ~ddi .~ .~irri,~ a~ p~Vi~e~ ~n [nls paragraph me amoun~ or any payments made to SUBCONRACTOR. pdor to the date ofte~’n~tion of thi~ A~reem~nt. SUBCONTRACTOR shall not be entitled to any daim, or claim of lien, against CONTRACTOR or against OWNER for anyaddiBonal compensation or damages In the event of such termination and payment, ]n the event this Agreement is terminated for Oause, SUBCONTRACTOR,.shall not be entitled to receive any further payment until the work undertaken by CONTRACTOR in its prime contract is completely finished, At that time, ifthe amounts eamecl but not paid SUBCONTRACTOR before the termination exceed the expenses i~curred by CONTRACTOR, In finishing SUBCONTRACTOR’Swork, any excess shall be paid by CONTRACTOR, to SUBCONTRACTOR; but if the expenses shall exceed the .amount earned and unpaid bySUBCONTRACTOR at the time of termlr~ation, SUBCONTRACTOR‘. shall promptly pay to CONTRACTOR the amount by whlch the expenses exceed the unpaidbanallY; Th~’~s incurred by CONITRACTOP, shall include costs f~r Furnishing materials, for finishing thework, for actual attorneys’ and con~ltants’?ee~ .in .cq~,:ln-gq.~l faith; and .for any damages sustained by C,O..NTR/~,CIOP,.by reason of 5UBCO .N~-.ACTOR’5 default~ plus a markup of fifteen percent(i5%) gen~il-ove~ead and ten percent (10%) profit on any ano all such expenses.

LABOR RELATIONS - Employment of labor by SUBCONTRACTOR, shall be effected under conditions which are sati~actory to CONTRACTOR.SUBCONTRACTOR shall keep a representative at the jobslte dudng all times when SUBCONTRACTOR’S work is in progress, and such representative shall beauthsdzed to represent SUBCONTRACTOR as to all phases of the work. Pdor to commencement of .the work, SUBCONTRACTOR shall notify CONTRACTORwho SUBC.ONTRACTOR’5 representative is to be, and in the event of any change of representative, SUBCONTRACTOR, shall immediately nbtiFyCONTRACTOR who the new representative Is to be pdor to such change becoming effective.

SUB’CONTRACTOR, acknowledges that CONTRACTOR has entered into labor agreements covering work ai its construe’don job sit~ with the following laborunions: Carpenters and Laborers.

defined bY e~di of tli~:iXafts-a~id.the:pr~e~ure containea mer~n’ror resoltlgon o[ ]urlsalc~lona~ u~puu~s, u= u.m.~u=,~.=~,~u,=,~procedure ~ils ~.p~p~ ~.sotv~’:th~ j,¢i~tl~onai o"L~pul~e; SUBCONIRAL-’roR agrees, at its own cost and ~; upon..r~t. U~t of CONTRACTOR‘ to take

pmrnls~ an~..ag~ ..~....tg. preyt~-(:O..N_-~A.GTO.Ri on a monmly-DastS~ a st:a!Us:=e~zer from me=r u.,u, ,,u u,=,, =~.~-~ .....................to paynient frO~ _~ONI"P.ACTOR t~!SUBGONTRACTOR, ’ ¯ .

I~e the obligation: of~ the SU~..1~. CrOR to continue the ~op~.. pe_non~.anc~e. _er_L~..s._w.om_..~w~m_o~u_,~’ ~[~r~p~_a~.n, o_r_~.el,aZ...b~no~{a,B~.~_O

~v~rd~’t~’~-or jL~dgm.en~ adsin~]b~/reason of any violation of.such laws, ot failt~r~ to futftlt the covenant~.S~ fgtth l.n this patagFapn;

Subcontractor. [~" 9

Attachment ’E’

further promises and agrees that it will bind and require all of its subconkactors and their subconb’actors performing jobsite work of the type covered bythis Agreement, to.agree to all of the foregoing promises and undertakings, to the same elfect as her~n provided with respect.to SUBCONTRACTOR.

K. LAYOLrr RESPONSIBILITY -CONTRACTOR shall establish prindpal axis lines and evels whereupon SUBCONTRACTOR shall lay out and shall bestridJy respanslble for the accuracy of its work and for any loss or damage to other contracto~ engaged In work on the site by reason of Failure ofSUBCONTRACTOR .ha set out or perform its work correctly. SUBCONTRACTOR shall exercise prudence s6 that actual final conditions and details shall resultin perfect alignment of finished surfaces.

L. WORKM.~NSHIP - Ever,/part of the work herein described shall be e~ecuted In strict accordance w~th the Contract Documents in the most sound,workmanlike, and substantial manner. All workmanship shall be the best of Its kind, and all materials used In the work herein described shall be ~urnished¯ in ample quantities to fa.dlitab~ the proper and expeditious execution of the work, and shall be new and the best of their respective kinds, except suchmaterials as m.a~t be expressly provided in the Contract Documents to be otherwise.

M. PROVISION FOR INSPEC3rIQN - SUBCONTRACTOR shall furnish to CONTRACTOR and its representatives ample [adlities at all times forInspe~ng materials at the site of const~u~on, at the shops, or any place where materials under this Agreement. may be in course of preparation, process,manu~ac~re or treatment. SUBCONTRACTOR shall ~urther furnish to CONTRACTOR as often as required, ’full reports of the progress of the work at anyplace where materials under this Agreement may be in the course of preparation or rnanutacture; the reports shall show the progress of such preparationand manufacture in su~n details as may be required by CONTRACTOR, Indudlng any plans, drawings or diagrams in.course of preparation. Themaking ortailure to make any inspection of or payment for or acceptance of" the materials shall not impair CONTRACTOR’S right to later reject nonconforming

¯ materials, or to avail Itself of any Other remedy which CONTRACTOR may be entitled, notwithstanding CONTRACTOR’S knowledge of the nonconformity, itssubstantiality, or the ease of its discovery. SUBCONTRAL’1DR shall liable for all inspeddon, reshipment and return costs 0h nonconforming materials.SUBCONTRACTOR shall not rel~ace returned materials unless so directed by CONTRACTOR In writing. CONTRACTOR shall retain all fights granted hereinnotwithstanding the provisions of Paragraph N of this Agreement. ¯ ..

N, MATERIALS AND EQUIPMENT - In the event the scope of work Indudes installation at~ materials or equipment furnished by others, Jr’shall be theresponsibility of SUBCONTRACI’OR to examine the items provided, and handle, st~re and Install the name with such skill and ~are as to ensure a satisfactoryinstallation. Loss or damage due to acts of: SUBCONTRACTQR shall be charged to the account 6f SUBCONTRACTOR and deducted from monies due underthis Agreement.

"13tie to any goods or matedal intended to be incorporated in~o the Project shall pass to CON]]~.CTOR once the’ goods or ~atedals are capable of beingidentified as intended For the Project, but SUBCONTRACTOR sheli be required to maintain insurance on and bear the risk of loss of or harm to any suchgoods and materials, as elsewhere set forth In this Agreement, for any and all applicable time periods, but in any event, unl~l completion of the Project, asdet~ned in the Contrac~ Documents. The provisions of this paragraph shall’ not nullif3, or modify any other provisions of this Agreement, which shall remain infull force and effect.

O, PROTEC]’ION OF WORK - SUBCONTRACTOR shall effeddvely secure and p~otect the work done pursuant to this Agreement and assume fullresponsibility for the condition, of its Work until final acceptance by ARCHI-rEcr, OWNER, and CONTRACTOR. SUBCONTRAC]’OR further agrees to providesuch protection as necessary to protect the work and the workers of the CONTRACTOR and other subcontractors from Its operations.

SUBCONTRACTOR shall be liable for any loss or damage to any work In place or to any equipment and materials on the job site caused by it or its agents,employees or guests. SUBCONTRACTOR shall promptly repair or replace any damaged work, properly or materials.

p. LISE OF CONTRACI’OR’S EQUIPPIENT - The SUBCONTRACTOR, its agents, employees, s~bcontractors or suppliers shall not use theCONTRACTOR’S equipment without the express wriK-en permission of the CONTRACTOR’S designated representative. SUBCONTRACTOR shall be fullyresponsible for and shall be deemed to have inspected any such equipment and accepts the use 6f such equipment as is. .

If the SUBCONTRACTOR, or any of Its agents, employees, suppliers, or subcontractors utilize any machinery, equipment, tools, scaffolding, hoists, lifts, orsimilar Items owned, leased or under the control of CONRACTOR, SUBCONTP,~CTOR shall act as an independent contractor and shall be pdrnadly liable forany loss or damage (including personal injury or death) which mayarise from such use regardless of who is operating any of CONTRACTOR’S equipmentunder SUBCONTRAL--’rOR’S control, and shall fully indemnify and hold CONTRACTOR harmless, pursuant to the provisions of Parag~ph B of this Agreement,fi’om any loss, claim, liability, damage, costs, expenses, including actual attorneys’ Fees incurred in good faith, awards, fines or Judgments adsing by reasonof such use.

(~,~ SPE~./F[C Cl’EAN- UP - Dudng the course of construction, SUBCONTRACTOR shall remove waste materials from the site as alton as is necessaryto maintain the premises In a dean and orderly condition. Upon completion of the work under this Agreement, SUBCONTRACTOI~ shall remove from the siteail temporary structures, debds and waste incident to hls operation and clean all surfaces, r-~.ures, equipment, etc., relative to the performance ofAgreemenl:. ~f SUBCONTRACTOR fails to perform a dean-up function within two (2) days after notification ~rom CONTRACTOR, written or oral, to do so,CONTRACTOR, may proceed with that function as i~ judges necessary In the manner It may deem expedient, and the cost therf~oF shall be charged toSUBCONTRACrOR and deducted ~rom monies due under this Agreement.

Q.2 GENERAl. (;LEAN- UP- During the course of construction the CONTRACTOR will be performing "general" dean up on a daily basis. These dean-upcosts will be distributed back to the SUBCONTRACTORS based on your pro- rata share of manpower on ~he site in relation to the total.

R, GUARANTEE - SUBCONTRACTOR guarantees all materials and workmanship and agrees to replace at its sole cost and expense, and t~ thesetisfaddon of CONTRACTOR, any and all mat.edais adjudged defective or improperly installed as well as guarantee the OWNER and CONTRACTOR agains~Ilabilib/, loss or damage arising ~rom the installation of ~he work during a period one (1) year from completion and. acceptance of the work covered by theprime contract. [f however, the pedod of guarantee In the Contract Documents exceeds over one (t) year, SUBCONTRACTOR shall be bound during thelonger period ~pulatad. SUBCONTRACTOR shall further guarantee the materials and workmanship of all repair work done pursuantto this provision for apedod of eighteen (18) months alter the repairs are performed. . /~ /~,

SubcontractorS’ ’

Attachment ’E’

S. A~IGNMENT OF CONTRA~’I" - SUBCONTRACTOR shall not, wil~ut wdtten con~nt of CO~OR, a~ign, ~nsfer or sublet any p~on orpa~ of ~e wo~ ~ui~ by this Agreement or a~Ign any pa~en~ her~nder ~ o~ers. If SU~O~OR is gPen-wd~en mn~nt b a~ign, ~nsferor sublet any pD~on or pa~ of ~e wo~ SU~ON~R shall b nd ~ submn~a~ors, a~Ignees OF ~ble~ to all of ~e t~s and pmvlsio~ of thisAgreement. No a~en~ ~b~n~, or sublet ~all ~ .valid units SUB~~R has ~lly compIi~ wl~ the provlQons of ~is parag~ph.~N~OR may a~gn or t~n~er ~e whole pa~ of ~is Agr~m~ ~d i~ Hgh~ hereunder,’to any co~a~on, ind~dual or pa~ership.

I. WA~R- ~Y a~ or ~i~ion of CO~OR whi~ ~BCO~OR might dalm as an ex~se for i~ own failure to ~o~ ~all be d~m~

waiv~ by SUBCO~OR unle~ it shall no~ CO~p~. I~.~ ~f i~ inten~ to a~ff ~ excu~ wl~In ten(10) days a~ t~ O~FF~ ofany ~ a~ or omi~ion. SUBCO~OR ~aiv~ any r~gh~ i~ m{gn~ n~ve ~ BSSe~ ~e provl~ons of ~LI~RN~ ~IL CODE Sec. 16~. again~~N~OR.

U. A~ORNEYS’ FEES - ~ any dispute arIQng out of or resul~ng ~om ~is Ag~ment or ~o~ance of ~e wo~ ~ the CO~OR andSUB~OR shall bear ~eir own a~rney’s r~s and ~. ~ addison, SUBCO~OR agre~ ~o waive any claim ~or a~orne~s f~ and ms~agaimt any ~e~ ~ r~ect to a pa~ent b~nd daim including but not limited ~ a.ny claim for. a~mey f~ pur~ant to Calif~la ~vil C~e se~ion3~0.

V.I DISPelS - (~.) If at aDy tlme afiy ~nVove~shall adse b~n CO~OR and SUB~~R r~ardlng an~hing pe~ining ~pe~o~nce of ~ls Agreement, whi~ ~e pa~ hereto do. not promp~y r~olve, ~en ~e wfi~en orde~ of CO~OR ~ SUBCON~OR shall be~11~.

V.~ If at any Ume, any dilute ~all adse be~een CO~OR and SU~O~O~ it Is agreed ~at CO~OR a~ SUBCO~OR ~all ~a ~ndi~on precept, meet and tanrer ~ dl~ss and resolve ~e dispu~. In ~e event ~at ~e meet and confer Is until, 5UB~OR and~OR agree to ~bmit ~e ~i~u~ to a Dispute Review Board ~DRB~ headng. Ea~ pa~ shall ~e~ one compet~t board membeb.and ~o~~o board membe~ ~all ~ the third member. All ~ard. mCmbe~shall~bmit disclosure s~te~ pu~ant ~ ~li~omla COde of Civil Pm~d~te

~her dl~ute re~lu~on pr~e~ings. In ~e event ~e DRB heanng, Indud~ a~me~s r~ no ~. ’ ¯ .

V.3 In ~e ev~t ~at ~e CON~OR and OWNER arbi~te a mn~ve~ ~at, in CONT~OR’S oplnlon, involv~ SUBCON~OR’S pe~o~ance,Submn~ requlmmen~ and/or claims ad~ng ~ereunder, then CO~OR may joln SU~O~OR as a pa~ to ~e a~it~on. SUB~N~ORagm~ and consen~ ~ su~ joiner. In be event SUBCO~OR is-m joihed, SU~O~OR shall be bound a~ abide by ~e t~, admlni~on,condiS~ and ml~ of a~i~a~on, and ~e award of ~e arbi~ators shall ~ final and bindlng with mspe~ to all dais, and issu~ presented or whiO werecapable of p~en~on in ~e proceed ngs.

v.4 If ~e SUBCON~OR d~ not pa~cipate as a pa~ to ~e CO~OR and OWN~ a~i~a~on, SUBCO~OR agrees b ~lflll I~ du~and obliga~ons und~ Pa~g~ph B above and c~pe~te with CO~OR in preening and defendlng claims in arbi~ation. ~BCO~OR h~e~agrees to ~ ~u~ by ~e arbit~on award, ~nd to accept, as i~ full mmpensation for any claim, ~e award ~edfi~lly dir~ to the SUBCON~O~as rendered by ~e a~i~r.

~.~ INDEMN~ C~USE ~I SAF~~D EMPLOYME~- SUBCO~OR shall at I~ o~ e~ense, comply wl~ CONDOR’S proj~ ~feW" ro mm a~ :all’~c ~e~-requ~emm~i I~ mgula~nsi ~I~ or o~nanc~, promulga~d by any govemm~t a~od~, whether ~a~, fede~l or9 - ~ - -; ~- ~- --~-.,-~,~"~""~uB~oN~OR sha I be ~lly r~po~bie for compliance wi~ the provisions of ~is pa~h by i~ i~

re. ulaB " lahS P~,~nd~ and .~gula~s no~ ~is~ng or.~en~ enact. SUB~NT~OR ~a]l be fully r~ponslble for compliance

comply.

11

Attachment ’E’

250 Bel Matin Keys Blvd.Building ANovato, CA 94949Phone: (415) 456-8972Fax: (415) 459-0665General ContractorLicense Number 626859

December 2!, 2007 ~ l[ll i I~’) ag/~~

GREEN GROV~I’H INDUSTRIES57 Califo~:nia Avenue, Suite JPleasar~ton, CA 94566

Attn: Roger Eckholm

Re~ #283 - Happy Hollow Park & Zoo ,Contract Documents

Dear Roger,

To this date West Bay Builders has not received your contract for the above,referenced project. Your Subcontract Agreement was sent out onDecember 7, 2007. Please call if you have any problems with er questionsregarding your contract. Otherwise, please submit your contract to usimmediately for execution. We cannot process your payment without it.Thanks for your help.

Sincerely,

Nickole DenneyProject Administrator

1 page via fax - (925) 484-0937

Attachment ’E’

December 21, 2007 ~

GREEN GROWTH INDUSTII.IES57 California Avenue, Suite JPleasanton,CA 94566

Attn: Roger Eckholm

Re: #283 - Happy Hollow Park & Zoo - Contract Documents

250 Bd Matin Keys Blvd.Building ANovato, CA 94949Phone: (4151 456-8972Fax: (415) 459-0665General ContractorLicense Number 626859

Deax Roger,

To this date West Bay Builders has not received your contract for the above-referenced project. Your Subcontract Agreement was sent cut onDecember 7, 2007. Please call if you have anF .problems with or questionsregarding your contract. Otherwise, please submit your contract to usimmediately for execution. We cannot process your payment without it.Thanks for your help.

Sincerely,

Nickole Denney /~’~Project Administrator

1 page via fax - (925) 484-0937

Attachment ’E’

250 Bel Matin Keys Blvd.Building ANovato, CA 94949Phone: (415) 456~8972Fax: (415) 459-0665General ContractorLicense Number 626859

GI~EN GI~OWTH INDUSTKIES57 California Avenue, Suite JPleasanton, CA 94566

Attn: Roger Eckholm


Dear Roger,

To this dale West Bay Builders has not received the revised contract for theabove-referenced project. The revised Subcontract Agreement was senton May 12, 2008. Please call if you have any further questions regardingyour contract. Othe~vise, please submit ~our contract to us immediately forexecution. We cannot process your payment without it. Thanks for your help.

Sincerely,


1 page via fax- (925) 484-0937

Attachment ’E’

250 Bel 1VIarin Keys Blvd.Building ANovato, CA 94949Phone: (415) 456-8972Fax: (415) 459-0665General ContractorLicense Ntunber 626859

August 1, 2008[ ~]l~

GREEN GROWTH INDUSTRIES57 California Avenue, Suite JPleasanton, CA 94566

Attn: Pm ger Eckholm


Dear Roger,

To this date West Bay Builders has :not received the revised contract for theabove-referenced project: The revised Subcontract Agreement was sent ou~on May 12, 2008. As of July 2na WBB has not heard back from Lisa regardingthe meeting that she wanted to have co work out remaining issues. Pleasecall if there are still questions regarding the contract. Otherwise, pleasesubmit your contract to us immediately for execution. We cannot process yourpayment without it. Thanks for your help.

Sincerely,

Nickole DenneyProjec~ Administrator

1 page via fax- (925) 484-0937

Attachment ’E’


September 5, 2008



Dear Lisa,

Tothis date West Bay Builders has not received the revised contract for theab0ve:referenced project. The revised Subcontract Agreementwas sent outon May 12~ 2008. On August 15th you requested that Clayton: Call you whenhe got back from vacation. Clayton called and left a message but to date hasnot received a call back. Please call ff there are still questions regarding thecontract. Otherwise, please submit your. contract to us immediately forexecution. We cannot prQcess your payment without it. Thanks for your help,

Sincerely,

DenneyProject Administrator

1 page via fax - (925) 484-0937

Attachment ’E’

September 5, 2008




Dear Lisa,

To this date West Bay Builders has not i~eceived the revised contract for. theabove-referenced project. The revised Subcontract Agreement was sent outon May 12~ 2008. On August 15th you requested that Clayton call you whenhe got back from vacation. Clayton called and left a message but to date hasnot received a call back. Please call if there axe still questions regarding thecontract. Otherwise, please submit your contract to us immediately forexecution. We cannot process your payment without it. Thanks for your help.

Sincerely,


1 page via fax - (925) 484-0937

Attachment ’E’

of 1

Clayton Fraser

From: Clayton Fraser

Sent: Wednesday, March 12, 2008 2:48 PM

To: ’[email protected]’

C¢: Chris Sander; Aristotle Giannis; Brooke EyermanSubject: Happy Hollow Park & Zoo- Reclaimed Water Work

Roger,

We have a small little issue that I wanted to bring to your attention at the above referenced project. Our site utilitysubcontractor (who we thought was doing all the reclaimed water work on the site) has apparently done some ofthis work that is shown in your L drawings and included in your Contract. !fyou reference LA1.7.1, LA1.7.3 andLA1,7.4 you will see a dark dashed line around the perimeter" of the site that states "contractor to reconnect to (E)main line". So, our superintendi~nt had our u[ility subcontractor perf0rm~the work on T&M as it was not shown onthe C drawings and later came to find out that it was shown on the L drawings, which now poses a problem. Westill have not received a total cost but it took roughly two days to do this work.

Joel met with Keith on site Tuesday to go over this so he is aware of the issue but I also wanted to bring it to yourattenti0~ being that it is a money issue. Once I get the final amount, I will talk to yot~ further about it as a credit is

Thank You

Clayton FraserChief EstimatorWest Bay Builders, Inc.250 Bel Matin Keys Blvd., Bldg. ANovato, CA 94949(415)456-8972 fax 459-0665

3/12/2008

Attachment ’E’

of 2

Clayton Fraser


Sent: Thursday, May 01, 2008 10:12 PM

To: ’Lisa Eckholm’

Subject: RE; Happy Hollow Zoo

Lisa-.

I thought I could get it waived but they are adamant that we need to get this from 5 key subs and you are onethem.

My hands are totally tied and there is nothing I can do. So I need you to do whatever you need to do to get thisbond. Otherwise, we may need to find another landscape contractor who can

Thanks

Clayton

From: Lisa Eckholm [mail~:o:lisa@greengrowth industries,com]Sent: Thursday, Nay 01, 2008 11:18 PMTo: Clayton FraserSubject; Re: Happy Hollow Zoo

Clayton,

I’ve been meaning to call you, the last time we spoke yott were going to taIk to your insurance and get thiswaived and you indicated to me that it would not be an issue.

GGI does not have a bonding relationship as of yet, you. should be able to communicate with yourbroker letting them know that WBB & GGI have completed several projects together and we as asubcontractor will continue to complete quality projects for your company based on past history, not tomention how LLLOOONNNGGG we wait to get paid (ha ha). So please go to bat for us! let me know if I canhelp.

Thank you[Lisa Eckholm

.... Original Message ....From: Clayton Frase[To: ro.LggA[@greengrowthindustries.com ; Lisa EckholmSent: Thursday, May 01, 2008 2:42 PMSubject: Happy Hollow Zoo

Roger & Lisa-

I have been asking for months now to get a performance bond from you for this project and have not heardword one.

It is a request straight from our bonding company. They have directed us to get 5 bonds from 5 of the largestsubs on this job and Green Growth is one of them.

5/4/2009

Attachment ’E’

of 2

Please provide this immediately and forward a copy of the invoice so I can issue you a change order for thecost.

Thank You

Clayton FraserChief EstimatorWest Bay Builders, Inc,250 Bel Marin Keys Blvd,, Bldg, ANovato, CA 94949(415)456-8972 fax 459-0665

5/4/2009

Attachment ’E’

of 2

Clayton Fraser


Sent: Thursday, June 05, 2008 10:31 AM

To: ’Lisa Eckholm’; ’[email protected]’

Subject: RE: Happy Hollow Zoo

Lisa and Roger-

This request contihues to beJgnored. I need to get a bond from you on this project. There is no way around it. Ourbonding company is demanding it. Therefore, need you to get a bond, provide me with the invoice and I will getyou paid for it immediately.

Thank You

.Clayton FraserChief EstimatorWest Bay Builders, Inc.250 Bel Marin Keys Blvd., Bldg. ANovato, CA 94949(415)456-8972 fax 459-0665

From: Clayton FraserSent: Thursdayt May 01, 2008 10:12 PMTo: ’Lisa Eckholm’Subject~ RE: Happy Hol low Zoo

Lisa-

I thought I could get it waived but they are adamant that we need to get this from 5 key subs and you are one ofthem:

.My hands are totally tied and there is nothingl can do. So I need you to do whatever you need to do to get thisbond, Otherwise. we may need to find another landscape contractor who can,

Thanks

Clayton

From: Lisa Eckholm [maiito:[email protected]]Sent= Thursday, May 01, 2008 11:18 PMTo= Clayton FraserSubject= Re: Happy Hollow Zoo

Clayton,

I’ve b~en meaning to call you, the last time we spoke you were going to talk to your insurance and get thiswaived and you indicated to me that it would not be an issue.

GG[ does rtot have a bonding relationstdp as of yet; you should be able to communicate with your

/ o5/4/2009

Attachment ’E’

of 2

broker letting them know that WBB & GGI have completed several projects together and we as asubcontractor will con finue to ~omplete q~lality projects far your conlpany based on past history, not tomention how LLLOOONNNGGG we wait to get paid (ha ha). So please go to bat ffor us[ let me know ifI canhelp,

Thank youlLisa Eckholm

.... Original Message ---From: Clayton FraserTo: roger~greengrowthindustries.com. ; ..L.i.s_a__Eckho_l_m..Sent: Thursday, May 01, 2008 2:42 PMSubject~ Happy Hollow Zoo

Roger & Lisa-

have been asking for months now to get a performance bond from you for this project and have not heardword one,

It is a request straight from our bonding company. They have directed us to get 5 bonds from 5 of the largestsubs on this job and Green Grd)wth is one of them.

Please provide this immediately and forward a copy of the invoice so can issue you a change order for the "cost.

ThankYou

Clayton-FraserChief EstimatorWest Bay Builders, Inc,250 Bel Marin Keys Blvd., Bldg. ANovato, CA 94949(415)456-8972 fax 459-0665

5/4/2009

Attachment ’E’

Page I o~ 1

Clayton Fraser

From: Clay Ion Fraser

Sent: Friday, June 27, 2008 9:03 AM

To: ’Lisa Eckholm’; ’[email protected]’

SuI~ject: HHPZ- Bond

Still have not heard o~" seen anything from you on this project and the bond. Please get back to me ASAP,

Clayton FraserChief Estimator

WEST ]lAY BUILDERS250 Bel Matin K.eys Blvd, [31dg ANovato CA 94949415-456-8972415-459-0665 (fax)

5/4/2009

Attachment ’E’

of 2

Clayton Fraser


Sent: Friday, June 27, 2008 2:14


Subject: RE: HHPZ- Bond

Lisa-

I am willing to meet with you but I am not sure what you want to talk about. If it to try and persuade me to allowyou to not get a bond, we don’t need to meet. I have no control over this. Our bonding company has demandedwe get it so Ineed to get it,

Let me know.


WEST BAY B UILDERS250 Bel Matin Keys Blvd, Bldg ANovato CA 94949415-456-8972415-459-0665 (fax)

From= Lisa Eckholm [mailto:[email protected]]Sent; Friday~ 3une 27~ 2008 2:07 PMTo= Clayton FraserSubject= Re: HHPZ- Bond

Clayton,

I am requesting that we get together and have a meeting regarding the bond that.you are requiring, I also need

to meet w/Lee preferably the. same day.. Let me l~ow when yon are available and I will also bring thecontract.

Respectfully,Lisa EckhohnGreen Growth Industries

.... Origina Message .....From: .C_l_a. ty~_n~ FraserTo: Lisa Eckholm ; Log#r_@g_ree_nLqro _wthindustries.comSent: Friday, June 27, 2008 9:02 AMSubject: HHPZ- Bond

Stil have not heard or seen anything from you on this project and the bond. Please get back to me ASAP.

5/4/2009

Attachment ’E’

of 2


WEST BAY BUILDERS250 Bel Matin Keys Blvd, Bldg ANogato CA 94949415-456-8972415-459-0665 (fitx)

5/4/2009

Attachment ’E’

Clayton Fraser


Sent: ThUrsday, September 11, 2008 2:11 PM


Subject: Happy Hollow Zoo

Lisa-

Why have you not signed the subcontract l~or this job? Where are we with a’bond?

Let me know, Thanks


WEST BAY BUILDERS250 Bel Marin Keys Blvd, BIdg ANovato CA 94949415-456-8972415-459-0665 (’l~x)

5/4/2009

Attachment ’E’

Green Growth lndustries, lnc,.12121-faxed 114 - Lisa said she would get the contracts out nex{ week.1/25 - foxed. 2/1- sue said Lisa should have them done by the end ~)fnextweek. She w~ remil~l her. 2i8 - f~;~i 2i~2-~ sloe s’a!d ’

~1~ .1~ st ,(work. ng on it. 2/29 - foxed 3/7- ,Sue said Lisa ~s working on the contracts. 3114 - foxed 3!21 - fa×ed 3/28 = left message4/4 - Sue said Lisa found a few discrepanc es and wl be.calitr~g Claylon. 4/1,1 -;,Clayton said Lisa has not contacted him. FoxedLisa 512 - foxed Lisa 5t9 - Sue saidsh~, t~,oughl Usa had sent It In. Lisa.iS out until Monday and she will check with her then.5/12 - sent out revised contracl "5/29 -faxed 6/6 - foxed 6/13 - Sue said LISa was in amaetliig ~0 she took a note down for her.~/20 - faxe~ 6/27- IL sa s~ d:she ~ma! ed da~t6n ~$5~ wants Ios~t ~)~ a t me to meet ~,~11~ ~im"~"l~nd d~llver it and work out

a few Ilems. 7/2 - original emall to clayton did not go through, .~malled clayton again. 712 - Clavlon co’d me on the emall that he sent~_sa,. It sou,ntis like.Clayt0n thinks that GGI does I~et want tO issue a bond to us. Clayton said our bond company.is requesting it.811 - FAXED 818 - foxed 8/15 - Lisa asked if C a~/ton.,cou}.d ~lva her a cal! on Monday. She=d0es not want the nasty gram_.a_gain.915 - e~.ailed Clayton C ay{on said he did call her back and she hasn~ called him I~ack. I am Sending offan0ther request.~/11 - Clayton emailed 9/12 - he has not heard back from he~-yel. 91t9 - Clayton said he has still not received a response.9119 -faxed 1013 - foxed 10110 ~ foxed 10/17 - faxed 10124 - foxed 10/31 - ema~led 11/7 - foxed 12/5 -faxed 12/12 - emalled Cat12/12 - foxed 12/19 -foxed 12124 - foxed 1/16 - Lisa said lhey are a most all done working eye.thing ou with the bond, She will�ontacl Clayton next week and et him know. Thee/WoUld like to get it over to us asapl 1/30- emalled Clayton 1/30 - ema~ed2/’12" ta~ed 2/20 "~’axed ~25 ~ ~;~aile~l ’Lisa ~127 - emai|ed Roger 3!6 ~- em~it~ Lis’a an~R~.�lei" .4/3 ~.emailed~t4/3L �-~t erdail~d th~ 4/10 -em a ed Cat ~o see if they res~hded{~-~r?-~i 3 - Cat said ndl 4~13 ~ ~ent er~~il-~-atinghave not received contract or bends in a year and hail Lisa said everyth~n,9 was worked out, ~,~l"6"’a~d:tha~ t~he~i.wo~td call~layton andth~e months i~{~r r~a~’~.. ~4-/:~~- ~ Recvd contract b~}~’~i{h 5~nds section crossed off. ’~av~ to’4/15 - R~’~-~c6n~r~:witl~bhnd Wq~ ng:~;rossed ~ff after the,y ~!,d i5~,~7 Cbuld provide it. Clayton has it now and ls workingonit.

5/18/2009

Attachment ’E’

SECTION 9 MEASUREMENT AND PAYMENT

based on any such act. failure to act, event, thing or occurrence for which nowritten notice.of potential claim as herein required was filed,

9,I,05 Stop Notices~"r The City may at its option and at any time retainout of any amoutltS due lhe:contractor~ sums. suffici6nt td cover claimsi filedpursuani IO Section 3 !79.et.seq ~Qf the Civil Code.: Stop notice information may beobtain6d fr0m: thelDepartment of Pi~blie Work of. the Cily of San Jose.

. 9-1.06 Partial Payments.’ r, The.. City, once in each month, shall cause anestimate in writing to ~made by th~ l~ngineei,. The estimatesiiaii includethe totalamount of W6i’k ~6iie i6 th6?time of suchestimate, and the. value ttier~of.~ Theesti

except that at any time after 50 percent 0fthe work has been completedi if theEngineer finds trial :satisi’actory progress is being made, !he City m~y reduce th.etotal amount being retained fr0m payment pursuant to the above requirements to :~percent of the t0~l estimated ival~e of said work and-’ mayso rediice ~he amountretained from any of the remaining partial payments to 5 percent of the estimatedvalue of such work. In addition~ on an3/partial payment made after 95 percent ofthe work has been completed, the cityrnay reduce the amount withheld frompaymenl pursuant to the requirements of this Section 9,1.06. to such lesser amountas the Engineer determines iS adequate Security for the fulfillment of the balanceof the work and other requirements of the conlract (but in no event will saidamount be reduced to less than 125percent of the estimated value of the work yetto be completed as determined by the Engineer). Such reduction will only be madeupon the wrilten request of the Contractor and shall be approved in writing by ttiesurety on the Performance Bond andby the surety on the Payment Bond: Theapproval of the surety shall be submitted to the City; the signature of the personexecuting tile approval for the surety shall be properly acknowledged and the powerof attorney authorizing him/her to give such consent must either accompany thedocument Or be on file with the City.

The Engineer may al any time and in the En.gineer’s sole discretionreinstale the retention at the full 10 percent of thevalue of the work performedupon notice, to the Contractor:. The Contractor shall immediately repay to the Cityall amounts paid tO the Contractor in excess of the 10 percent retention~ If theContractor fails to repay the amount due within a reasonable time~ the.City may,in addition to-all of the other remedies:available to it, withhold such amount fromfuture partial paymenls made to the Contractor.

The City shall pay monthly to the Contractor, while carrying on the work,the balance not: retained,: as aforesaid, after deducting theref~oni all_previouspayments and all sums to be kept or retained under the provisions Of the contract.No such estimate Or paymfftit shall be required to be made when; in the judgmentof the Engineer; the ~ork is not proceeding in accordance with the provisions ofthe contract, or the total value of the work done since the last estimate amOUnts toless than $5.030.

No such estimate or payment shall be construed to be an acceptance of anydefective work or improper materials.

Attention is directed to the express prohibition against payment tounlicensed contractors contained in Public Contract Code Section 10164, theprovisions of which are set forth in Section 7.1.01C, ""Contractor’s LicensingLaws."

9-12

Attachment ’E’

MEASUREMENT AND PAYMENT SECTION 9

The estimates of the Engineer shall be final and conclusive evidence of theamountof work performed by Ihe Contractor under this contract, and shall Ix: takenas full measure of compensation to be received by the Contractor.

Before any partial payment or iho final payment is made, ~he Contractormay be required to submit satisfactory evidence that the Contractor is notdelinquent in payments to employees Or creditors for labor and materialsincorporated into the work.

The Contractor shall maintain and provide to the City, with each papalpayment request, certified payrolls for all of its employees and those employees ofContractor’s subcontractors.

.9.1.065 Payment of Withheld Funds. - The Contractor may substitutesecurities for anymoneys wilhbeld by the City to ensure performance under thiscontract, provided that substitution of securities shall not be allowed in contracts inwhich there will be financing provided by the Farmers Homo Administration of theUnited Stales Department of Agriculture pm’.suant to the Consolidated Farm andRural Development Acl (7 U.S.C. Soc. 1921 et seq.), and where federal statutes,regulations or policies, or both, do not allow the substitution of securities. At therequest and expense of the Contractor, securities equivalent to the amount withheld.shall be deposited with the City, or with a state or federally chartered bank as theescrow agent, the City shall then pay such withheld moneys to the Contractor.Upon satisfactory complolion of the contract, the securities shall be returned to theContractor.

Securities eligible for investment under this Section shall include thoselisted in Section 16430 of the California Government Code, bank or savings andloans certificates of deposit; interest bearing demand depOsit account~, standbyletters of credit, or any other security mutually agreed to by the Conmactor and theCity.

The Contractor shall be the beneficial owner of any securities substitutedfor moneys wilhheld and shall receive any interest thereon.

The escrow agreement used to implement this Section shall be null, void,and unenforceable unless it is substantially similar to .the following form:

9-13 ’

Attachment ’E’

A A-3

The Contractor shall certify the full and final documentation of the potential claimwith reference to the California False Claims Act, Government Code Sections12650-12655.

The Contractor shall include all pertinent information, references, arguments, anddata to support the potential claim .in the full m3d final dociltmentation of potential claim.The City wiil not consider itlformatibn submitted by th~ Cbntraetor subsequent to the fulland final documentation submittal. Information required in the full and finaldocumentation of potential claim, as listed in items A to E above, that is not applicable tothe dispute may be exempted as d~termined by the City. The Citywill not consider a fulland final doc~iinentati0n qfP0t~tial claim that does not ha~e the same nature andcircumstances, and basis of Claim as those specified on the initial and supplementalnoticed: of potential ~iaiml

The City will evaluate the information.presented in the full and finaldocumentation of potential claim and provide a written response to the Contractor within30 days of its receipt. The City’s receipt of the full and final d0eumentati6n 0fpotentialelainishall be evidenced by postal receipt or the City’s writteii receiptdf delivered byhand-. Ifthe c6ntraet6~:~tit~tnits the full and final documentation of potential claim afteracceptance Of the work by the Director, thO City neednot l~rovide a written response.

Section 9-I.07B, ."FinM paymgnt and Claims, of the Standard Specifications shall be deleted inits entirety and replaced with the following;

9=I.07B Final Payment and ClaimsProposed Final Estimate: After acceptance of contract by the City; the City will

mal~e a~p~;~ed ialaat estimat~ in Writing of the total amount payable ,to the Contractor.The proposed final estimate will include an itemization of the toial amount, segregated bycontract item quantities~ extra work and other basis for payment. It will also show eachdeduction made or to be made for prior payments and amounts to be retained by the Cityreader the provisions of the contract. Prior estimates and payments shall be subject tocorrection in the proposed final estimate.

Contractor’s Response to Proposed Final Estimate: The Contractor shallSUbmit a written response to the proposed final estimate by no later than the close ofbusiness of the thirtieth (30m) day after receiving the proposed final estimate, tfthethirtieth (30t!~) day falls on a Saturday, Sunday or legal holiday, then the Contractor shallsubmit the.written response not later than the close of business of the next business day.The City must actually receive the Contt’actor’s written response to th~ proposed flnalestimdte within the above-referenced time t~eriod. The Contractor’s receipt of theproposed final estimate, shall be evidenced by posta.l receipt. Th~ City~:s receipt of theContractor’s written approval or statement of claims shall be evidenced by postal receiptor lhe City’s written r.eeeipt if deliv .ered by ha~.d.

SPECIAL PROVISIONS_ 07-30-07A-3 CONFORMED SET 01-21-08 Page 15~ of I5

Rev. 3/22/06

Attachment ’E’

A A-3

Contractor’s Failu re to Time,l¥.Respond to Proposed FinalEstimate: The parties agree that the Contractor’s failure to respond tothe proposed final estimate within the thirty-day time periodset forthabove shall be deemed Contractor’s approval of the City’s proposedfinal estimate and shall bar thb Contractor from pursuing any claims.

Final Estimate: If the Contractor approves the City’s proposed final estimate in itsentirety or failst0 respond within the specified period of 30 days, the City will issue afinal estimate in writing in conformance with the proposed final estimate, and within 30days after i~suance of the final estimate shall cause the City to pay the entire sum found tobe due. That final estimate and payment thereon shall be conclusive and binding againstboth parties to the contract on all questions relating to the.amount ofwork: done and thecompensation payable therefor, except as otherwise provided in Section 9=1.03C, entitled"Records?’

Semi-Final Estimate: If the .Contractor timely responds to the proposed finalestimate by as~ertii~g claims, the City will issue a semifinal estimate. The semifinalestimate will identify those sums that bo.th the City and Contractor agree are not indispute. Any other sums shall be considered to be sums that are in dispute. Within 30days following City’s issuance of the semifinal estimate, the City will pay the Contractorthe sums that both parties agree are not in dispute, subject to any 6ffsets that the Citymayhave. The City shal! not be under any obligation to pay out sums that are in dispute.

The semifinal estimate and corresponding paymettt of the sums not in dispute shall beconclusive and binding against both parties to the contract on each question relating to theamount of work done and the compensation payable therefor, except as otherwiseprovided in Section 9-1.03 C, "Records"

C.Q0ntragt0~s :Written Statement of Claims; If the Contractor responds to theproposed final estimate by asserting claims, the Contractor shall submit with its responsea written statement of claims. The Contractor shall provide its written statement ofclaims on Form SOC (Statement of Claims) supplied by the City and include theinformation required by the following subsections:

Disputes Arising Prior to Issuance of Proposed Final Estimate: Except forclaims for Overhead expenses, .for any claims based on disputes that occurred prior tothe issuance of the proposed final estimate, the Contractor shall inblude the followingitems of information for each claim:

A. The exclusive identification ~umber that corresponds to the supporting full andfinal documentation of potential claim submitted on Fbrm NPC-C.

B. The final amount of requested additional compensation and/or time exteiasion tothe e. ontraet.

SPECIAL PROVISIONS 07-30-07A-3_CONFORMED SET 01-21-08’ Page 16 of 16

Rev. 3/22/06

Attachment ’E’

Happy Hollow Park and Zoo

, SEcTiON0"I290 :

PAYMENT PROCEDURES

PAYMENT PROCEDURES01290

CONFORMED SET-I/21!08

PART I - GENERAL

1.1 RELATED DOCUMENTS

1.2

A. Drawingsl General and Special Provisions of the Contract, including General Conditions andother Division I Specification Sections, apply to this Section. ~

SUMMARY

A, This Section includes administrative and procedural requirements necessary to prepare and.process Appl.icati0~is for Payment. :

B. Related Sections include the fo!lOwing:

1. Division I Section "Allowances" for procedural requirements governing handling andprocessing of allowances.

2. Division 1 Section "Contract Modification Procedures" for administrative procedures forhandling changes to the Contract.

3. Division 1 Section "Construction Progress Documentation" for administrative requirementsgoverning preparation and submittal of Contractor’s Construction Schedule and SubmittalsSchedule.

1.3 DEFINITION

A. Schedule of Values: A statement furnished by Contractor allocating portions of the Contract Sumto, various portions of the Work and used as the basis for reviewing Contractor’s Applications forPayment.

1.4 SCHEDULE OF VALUES

Coordination: Coordinate preparation of the Schedule of Values with preparation of Contractor’sConstruction Schedule.

1. Col’relate line items in the Schedule of Values with other required administrative forms andschedules~ I~icluding the following:

a. Application for Payment forms with Continuation Sheets.b. Submittal Schedule.c. Contractor’s Construction Schedule in hard copy and electronic format.

2. Submit the Schedule of Values to City’s earliest possible date but no later than seven daysbefore the date scheduled for submittal of initial Applications for Payment.

3. Sub-schedules: Where the Work is separated into phases requiring separately phasedpayments, provide sub-schedules showing Values correlated with each phase of payment.

Format and Content: Use the Project Manual table of contents as a guide to establish line itemsfor the Schedule of Values. Provide at least one line item for each Specification Section.

1. Division 1 Sections:.Except as specified here, all Sections in Division 1 of these Specificationsare considered included in the Contractor’s General Conditions. Contractor st~all include only

01290 - 1

Attachment ’E~

Happy Hollow Park and Zoo PAYMENT PROCEDURES0129O

CONFORMED SET - 1/21/08the following tisted Division 1 Sections as separate line items the Schedule of Values and eachin conformance with Part 4 of the r.especti~e Sections:a. Section 01210- Alternatesb. Section 01220 - Revocable Contract Itemsc. Sec~on 01230-AII0wancesd. Section 01505 - Mobilizatione. Sedan 01781 - Project Record Documentsf. Section01782.-,Operation and Maintenance Datag. Section 01820- Demonstration and Training

2. Identification: nclude the following Project identification on the Schedule of Values:

a. Project name an~l location.b. Name of Architect.c. Architect’s project number,d. COntractor’s name and address.e. Date of Submittal.

3. Submit draft of AIA Document G703 Continuation Sheets.4. Arrange the Schedule of Values in tabular form with separate columns to indicate the following

for each item listed:

a. Related Specification Section or Division.b. Description of the Work.c. Name of subcontractor.d. Name of Manufacturer or fabricator.e. Name of supplier,I=. Change Orders (numbers) that affect value.g. Dollar value.

1) Percentage of the Contract Sum to nearest one-hundredth percent, adjusted to total100 percent.

h. Previous payment dollar amount.

5. Provide a breakdown of the Contract sum in enough detail to facilitate continued evaluation ofApplications for Payment and progress reports. Coordinate with the Project Manual table ofcontents~: Provide several line items for principal subcontract amounts, where appropriate.

6. Round amounts to nearest whole dollar; total shall equal the Contract Sum.7. Provide separate line item in the Schedule of Values for each part of the Work where

Applications for Payment may include materials or equipment purchased or fabricated andstored, but not yet installed.

Differentiate between Items stored on-site and items stored off-site. Include evidence ofinsurance or.b0nded warehousin&

8. Provide separate li~e items in the Schedule of Values for initial cost of materials, for eachsubsequent stage of completion, and for total installed value of that part of the Work.

9. Allowances: Provide a separate line item in the Schedule of Values for each allowance. Showline itemvalue Of allOWances, as a product of the Unit cost, multiplied by measured quantity.Use information indicated in the Contract Documents to determine quantities.

10. Each item in the Schedule of Values and Applications for payment shall be shown as the exactamount to be paid to each SubcontractOr: ~

a.. General Contractor’s overhead and pratt to be shown on a separate line proportionate toeach month billings.

01290-2

Attachment ’E’

Happy Hollow Park and Zoo PAYMENT PROCEDURES01290

CONFORMED SET- 1/21/08

b. Temporary facilities and other major cost items that are not direct cost of actual work-in-place may be shown either as separa|e line items in the.Schedule of Values or distributedas general overhead expense, at Contract0r’.s option.

11. Schedule Updating: Update and res’ubmit the Schedule of Values before the next Applicationsof Payment when Change Orders Or Directed Change Orders result in a change in the ContractSum. When Change Orders result in a change in the Contract Sum, include each ChangeOrder as a new line item.

1.5 APPLICATIONS FOR PAYMENT

Each Application for Payment shall be cbnsistent with previous applications and payments ascertified by Architect and paidfor by the City.

1. Initial Application for Payment, Application for Payment at time. of Substantial Completion,and flnalAppiication for Payment inv0ive additiona! re~iuii-em~ntsl

Fo

Payment App cation ,Times: Progress payments shall be submitted to the City by the 15~ day ofthe month: The period coVered by each Application for Payment is to the last day of the previousmonth~

Payment Application Forms: Use AIA Document G706 "Contractor’s Affidavit Of Payment of Debtsand Claims/’

Application Preparation: Complete every entry On form. Notarize and execute by a personauthorized to sign legal documents on behalf of Contractor, The City will return incompleteapplications without action.

!. Entries shall m.at~h data 0n the Schedule of Values and Contractor’s Construction Schedule.Use updated schedules if revisions:were made.

2. Include amOuntS of approved Change Orders. Directed Change Orders and Letters of Intentfor Extra Work issued before .the last day of �onst.ruction period covered by application.

3. Pay applications shall include Schedule of values and Schedule.shall include previouspayment dollar amount and percentage of w0rk £omp!eted,

Transmittal: Submit three (3) signedand n~otarize~l original cop.ies ¢tf. each Application forPayment to ~h~ City by a method ensuring receipt within 24 hourS. One copy shall includewaivers of lien and similar attachments as required;

1. Transmit each copy with a transmittal form listing attachments and recording appropriateinformation about application.

2. Progres.s Payments shall iriclude updated Contractor’s Constructi0nSchedule,

Waivers of Mechanic’s Lien: With each Application for Payment, submit Waivers of mechanic’slien from every entity who is lawfully entitled to file a mechanic’s lien arising out of the Contractand related to the Work covered by the payment.

1. ~t~b~i:[ i~a~ial waivers on each item for amount required in previous application, al~erdeduction for retainage, on each item.

2, When an application show~ completion of an !te~n, submit final or fu!! waivers.3, city reserves the right’to designate which entities invoi~ied in ithe Work must submit waivers.4.. Submit final Application for Payment with or preceded by final waivers from every entity

involved with performance of the Work Covered by the .application who is lawfully entitled to alien.

01290 - 3

Attachment ’E’

’~- ..~.~"" CONTRACTOR agrees to pay SUBCONTRACTOR for the strict performance ol~ its work, the sum of,~-. ~ one million, five hundred-seven~.-one thousand six hund " -. : ..... . , ¯ , , , red I:hlrt~__. seven and No/lO0 dollars~ :/,.’,.~_~. ($1~571,637), subject to additions, and deduddolls for changes In the wo~ ~s may be anreed uno-

~.~payment in accordance with the Payment Schedule, S~-tion 4 "

":’~ SECT’ZON 4 PAY"ENT S~HEDULE ’

~..~_.~.N’]’~CTOR agrees to pay SUBCONTRA. CTOR in monthly paynlenl~:ot~ 90% ..... . - .... t~rials: wr~ cn na -~. -~ ~ .In .posjl:lon and for wh’.!~ ~e fight to payment has been

!~..~...~_e~.t..No paym.ent m.a~t?_pfior to completion and acceptance of~e work shall be construeda~

: ~.~.w~,~, ~u,U.,~, *!~.¢:,,~,nfllUOn,.al..~no Uncon~!l~lOnal lien releases (copies al~ched), insurance certifica~’~,;BIOB 5Ed[1JS leEerst arlCi ir.~ cerEIrleQ payrol s l=or a~v arid a I of its ve o "

~.-:~ , .-., ,..,.. . ¯ ..... . . . nd rs ,and sUbcontrac~rs b the 20 da of the, ,~nt~..be, ng b,lled t’or, as apphcable. Further, uncond,tfona, hen releases s,gned by SUBCO~C?’(~R shall ~’etveproof of payment through the effective time period in the body 01" the release, CONTRACTOR shall be entitled to usesaid releases as proof of payment.in Pull ~or the elTective time period, effectively barfing late submitted certi~ed payroll,change orders and any claims for additibnal compensation, unless detailed s¢~clflcally inwriting on the face of therelease and in accordance with the subcontract provisions, includipg submissions deadlines. At~’~e conclusion of theProject SUBCONTRACTOI~ is :~;equired to endorse the standard CONTRACTOR form enLil~led "ApplicatiOn For Full andFinal Payment" as & condition precedent to final pa~;ment. ’

SECTZON 5 - WAGE RATE DECISIONS / PREVATL[NG WAGE / CERT£FIED PAYROLL REPORTS

~.8.,¢~NTl{A~OR-Is.~h.sible for following the guidelines Of Eqe California Labor Codes, including overtime hours,.~l~f~ti~ l’~eii~:.~ (Attached is an excerpt or Lhe Labor Codes £or SUBCONTRACTOR to review and initial).-T~.i~ :Gelie.rbl ~/~tge D~!~lon applicable to this contract is: California Director of [ndu~rial RelationsCounty ol= Santa Clara for 2007-~ until superseded by a new determination issued by the Director of Indusb’ialRelations. SUBCONTRACTOR agrees I:o submit certified payroll reports to CONTRACTOR no later than ~hree C3) workingdays after labor has been paid.

.SECTZON 6- GENERAL SUBCONTRACT PROVXS~ONSTli~ GenP~al Subcontract ProviSions a~e.an integra,! par~ o1~ this Agreement.

.SECTION 6.1 - EXCLU&’IONS¯ Hot or cold laps .

(~ (~¯ Water meters/.~/~l~ ~F M~eL¯ Zmpo~ ~p~il¯ Off haul of debris or spoils¯ Demo work¯ Ele~cal work

¯ Watering and/or main~nance of ~xi~ing lands~pe during const~ion¯ P~-cast s~t wall¯ Bac~ow¯ Concrete work¯ ~le~ rock¯ Tree p~te~ion¯ T~e ~imming¯ TRe ~moval ~ transplant (except palm trees)¯ Cdring~ boring, drilling, cu~ing~ patching, digging though or hauling o~ AC, con~e~ or

~ck¯ T~ffic control¯ E~sion cont~l ~

¯ Trench plating ~¯ Drainage ~ ~ t ~%¯ Clearing and gr~bbing

Riparian woodland planting and irrigationGate valve P.O.C,

Subcontractor

Attachment ’E’

!3:40 FROM:~REEN ~ROWTH INDUSTR

Green Growth Industries will supply all material,, labor, supervision and transportation n~c~ssary.to provide Landscape at the above location, All work shall be do~ in a timely and professionalmanner. All wo~ will comply with all Landscape Standards & Codes as ~er specinca|ion.~ andplans as follows: (The follo~ing proposal is valid for 30 days from the bid date). Green GrowthIndustries Ls SBE ~=ertified, .

Base Bid Includes:¯ Irrigation . ¯ Bark Mulch ¯ Union/State¯ Soil Prel~mf~on ¯ Sod- Prevailing Wages¯ Planting ¯ Tree Stakes & Ties - 60 day maintenance¯ No Mow ~od - Transplant (6} Palm . 1 year guarantee

Trees

Bid Excludes:

¯ Hot or Cel~l Taps¯ Wa~r Meters¯ Import Topsoil¯ Off haul of’debris or

spoils¯ Demo work- Electrl¢~l Work¯ Permits/Bonds¯ Federal Wages¯ Watering and!or

maintenarme of existingk~ndsc~tpe duringc~nstruotionPre-caSt S~at Wall

= ,ConcJ’e~ WorkSelect Rock

’ Tree Protection - R~ugh Grading (Gra~e is¯ Tree Trimming to be received by GG1 at¯ TreeRemov~I/Tmnspiant +1-1/10 of 1’-0" of finish

(except pmlm trees) grade m.nd sloped to~ Coring, Bodng, Drilling, drain)

Cuffing, Patching, - Sun/eying, Bench Marks,digging through or Radius PoI~ts.(To beHauling of AC, Concrete provided by others)or rock. = . Fer~ing ~f all types

- Traffic Control tern .pprary or o~e~se= .Erosion Control ¯ . P__~pper pipe Installation. Slgnage qf~y Type and/or repair.¯ Trench Plating¯ Drainage of any type Irrigation damaged by ¯¯ Clearing & Grubbing others¯ Riparian Wo0d~and

Plantlng/]rMgation" ;, Dcinking.F6unlains¯ Gate Valve P.O.C.

Total Bass’Bid $1,257,3’77,00

0B/09/2007 THU [TX/R)<, tl0 8183] ~001

o

08108/200~ THU 13’48 [TX/RX NO 8183] ~002

Attachment ’E’

, Rough grading (grade is to be received by SUBCOI~TRACTOR at-~- lJ 10 of 1’-0" offinish grade and sloped to drain) /~

¯ Surveying, bench marks, radius points . "¯ Fencing ~I~,411"~/~9 l"~o~.Z~l o~.-¯ Copper pipe installation and/or repair¯ Repair of landscape and irrigation damaged by others¯ Water feature¯ Drinking fountains

SECTXON 6.2- CLAR!FrCJ~TIONS¯ Price Of $22,4~1 accepted for F & I of £~ction 02505¯ Pricing of $104,112 accepted for F & I of items A, B, C, G, H, I and J in Sec~on 02870¯ Pricing of $187,737 accepted for F & I of Graenroof Planting, lightweight soil a~d


SECT!ON 7 -SPECIAL PROVISIONS

This notice required by Business and Professions Code 7030 iS an Integral ~art of this Agreement:Contractors are required by law to be licensed and regulated by the Contractors’ state ucense Board which hasjudsdictJon to investigate complaint~ against Contractors i[ a complaint Is filed within three years of bhe date of thealleged violation;. Any quasti0ns concerning a Contractor may be referred to.The Registrar, Contractors’ State Ucense

Board, P.O. Box 2600, Sacramento, CA 95826.Contractors are required by law to be licensed and regulated by the Contractors’ State License Board,Any questions ~once2ning a contractor may be referred to the registrar of the board whose address is:

Contractors’ State License Board - 1020 ,N" Street, Sacramento, CA 95814

SECTION 8 -INSURANCE

SUBCONTRACTOR shall, at his expense, procure.and maintain insurance on all of his operations, in companiesacceptable to CONTRACTOR, as follows: Workers’ Compensation and EmploYer’s Uability Insurance. Workers’Compensation insurance shall be pr0v|ded to the fiJII extent required by state law, and Shall include a Worker’sCompensation Waiver of Subrogation Endorsement (thls endorsement must be attached to the Worker’s CompensationCertificate). If there is an exposure of injury to SUBCONTRACTOR’S employees under the U.S, Longshoremen’s andHarbo~ Workers’ .Compensation Act, the Jones Act or under laws, regulations or statues applicable to maritimeemployees; coverage shall be included for such injuries or claims. Employer’s liability insurance shall be in an amountno tess than $1,000,000. each employee for bodily injury and disease.

General Liability Insurance. SUb�ONTRACTOR shall carry Cor~pmhensive General Uability or Commercial GeneralUability insurance covering .all 0p.e.rati00s bY or On b~hatf of the SUBCONTRACTOR providing insurance For bodily injuwliability and property damage liab.! ty for the. limits of liability indicated beli)~ and including coverage for:

I. Premises andOperati0ns ..:2~ ProdUctS and Completed Operations3. Contractual Liability insudng the obligations assumed by SUBCONTRACTOR in this

Agreemen~4. Broad Form Property Damage (including Completed Operations)5. Explosion, Collapse and Underground Hazards6. Personal Injury Uability

A. Umits of Uability - All Policy Forms1. If SUBCONTRACTOR carries Comprehensive General Uability Insurance, the limits of liability shall not be

less than /~tt., ,~$2~ach occurrence ~ ’ ~$8~ aggregate ~J/#

j~j~-.1f SUBCONTRACTOR cai"des Commerdal General Liability insurance, the limits of liability shall not be lessn~/" than: ~,.d~:~ ~j;tl FU~.,~’~ -t~"pdl~J;,~/-T~sa~’~.,~’,~ .(~).~K" ~eo.’,~’~

$1,000,000 each occurrencecombined single limit for bodily injury and propetL=~damage$1,000,000 for Personal Injury Uability$2,000,000 Aggregate ~r Products-Completed Operations$2,000,000 General Aggregate

The "general aggregate" limit shall apply separately to SUBCONTRACTOR’S work under this contract.Subcontractor

Attachment ’E’

B. Spedal "Claims Made" and "Modified Occurrence" Policy Form Provisions. SUBCONTRACTOI{ shall not provideGeneral Uability Insurance under a "Claims Made" and ~Modified Occurrence" Commercial General Uabillty form.

C. Addltional Insured. Wi~h respect to whichever General Uability policy form is furnished as required above:1. CONTRACTOR, its officers, directors and ,employees and OWNER and its employees ~nd Other parties

as required by contract and .the ArchRec~ shall be named as addit!onal insured. The Products-complet:ed Operations cove~dge shall be maintained through all required statutory periods apl~iC~bie to theProducts-Completed Operations coverage inclusive of additional insured provisions in all future renewals ofthe coverage.

2. The policy shall be endorsed to stipulate that the insurance afforded the add~onal insured shall apply asprimary insurance and that any.other Insurance malr~teined by CONTRACTOR or OWNER shall be excessonly and shall not be called Upon to contribute with SUBCONTRAL-FOR’S insurance.

3. Coverage ~or the CONTRACTOR, its officers~ directors and employees and OWNER and its employeesand other parties as required by contec~ as additional insured shall be provided .by a policy provision or byan endorsement providing coverage at lease as broad as Add~onal Insured (Form B) Endorsement FormCG2010 (1L/8~ or Its equivalent as published by the Insurance Services Office

Automobil~ Uabliitv InsuranCe SUBCONTRAL-’TOR shall carry, automobile liability insurance, including coverage for allowned, hired and non-owned automobiles. The limits ofliability shall not be less than St,000,000. Combined SingleUmit each.accident for Bodily Insure and Property Damage combined.

~L~ If the SUBCONTRACTOR or their lower tier subcontracf.ors use am/owned, leased, chartered orhired aircra~ of any type (including helicopters) in the performance of this contracb they shall maintain aircraf~ liabilityinsurance in an amount o~ not: less than $5,000,000. per occurrence including Passenger Uability. Evidence ofcoverage in the form of a Certificate of Insurance including addil~onal Ensured s~aL~s, as required by the general liabilitycoverage, shall be provided p’rior to the ~rt of work to CONTRACTOR.

PollLCdOn Liability If SUBCONTRACTORS are required to perform remedial hazardous material operal~ons such asasbestos containing materials, contaminated soil etc., they must, In add tJon t.o the above requirements, carry a"Conl~ctor’s Pollution Uability" policy with limits not: less than $2,000,000 per occurrence and not less than$2,000,000. aggregate for Bodily Injury, Personal ]Injury and Property Damage naming CONTRACTOR and OWNER asan addiUonal insured including contractual liability cove~ge. If SUBCONTRACTOR or their lower I~er subcontractorshaul hazardous waste they must carry Automobile Uability. Insurance with a $2,000,000 combir~ed single limit peroccurrence for Bodily Injury and Property Damage applicable to all hazardous waste hauling vehldes and include MCS90.

~ A $1,000,000. Professional Uability Insurance policy shall be carried if. SUBCONTRACTOR or theirlower tier subcontractor is to.provide design or design/build services to the projecL Such insurance shall indude

cove~ge for contractual liability. Evidence of coverage In the form ot~ ~ Certificate of insurance shall be provided priorto the start: of. work to CONTRACTOR and such coverage Shall be maintained for two (2) yea.rs following completion pfthe project.

Cer’dfi~s or’ Insura!~ce A eertit=icate of Znsuran~’e Including endorsements as. required above, as evidence o/= theinsurance required by th!s Agreement~ shall be furnished by SUBCONTRACTOR ~o CONTRACTOR before any .workhereunder is commenced by SUBCONTRACTOR. CONTRAL’TOR reserves the dgh~ to reque-~ and SUBCONTRACTORshall provide upon demand ~ certified copy of all polities of insurance required by this Agreemen~ The CeCdficates of]Insurance shall provide that there w~lt be no cancellation or reduction of coverage without thirty (30) day’s prior writtennot:ice to OWNER.

In the event: the SUBCONTRACTOR ~ails to maintain any insurance coverage required under this Agreemen%CONTRACTOR may maintain such coverage and charge expense to sUBCONTRACTOR, or terminate this Agreement, orhold the SUBCONTRACTOR accountable for all costs incurred by CONTRACTOR as a result:of SUBCONTRACTORSfailure to maintain the proper insurar~ce. Upon written reques~ from CONTRACTOR, SUBCONTRACTOR shall providecomplete policy or polities to ~ONTRACTOR within ten (10) days.

The required Insurance shall be subjec~ to the approval of CONTRACTOR and OWNER, but any acceptance of insurancecertificates by CONTRACTOR or OWNEE shall in no way limit or relieve SUBCONTRACTOR of the d~Jties andresponsibilities by SUBCONTRACTOR in this Agre&ment. If higher IIm{ts or oth~ forms of insurance are required in theContract Documents, SUBCONTRACTOR will comply with such requirements.

Attachment ’E’

General SubcontracL ProvisionsCE SUBCONTRACTOR shall at all ~imes carry on all operations hereunder, such Insurance as is set forth in section 8 to this agreement,

A, ZNSURAN - - ¯ ~ .- ’. ......... :- -,.,~’,~-~-c~’The renu rements for carrying the insurance as sel: forth in section 8 shall not derogate

,,~.~. ~-om ar~. pr0v~o~ 1~6i" ind~fi~tt~i 6f cOhrI~CTOR I~:SUQ .C..O~. O’OR pursuant to the terms of th~s Agreemen!~

and their ag..~O~Z.off!. --, .......... : .....-. ~- ,: ...... ........ UBCONTRACTOP,’S efformanm under th~ Agreemen. ¯ : " . ~ directors and emp oyees morn. ou.~, ,u=.~=, ~-...-0--, , = . " .....

c~ by ~IS-.~’~’~an~ .d.oq~ at the S~.b~ or In" p.r~.ar~.g:or de!iveriri~ materiels or equipment to the site, shall be at the sole dsk of SUBOONTRACTOR

~a-a’cl: P~m ir~ ~ec;dor~-3 The l~nds mall De exeo~ rporace sure~ accep,-u,~ u~ ..... ~-~ ........II athe Con ....... ¯ ’ terlal ntrad: CONTRACTOR sha p¯ - - ¯ " das Failure pedy maintain bonds shel be ama

e’nts.the bond premium in an amount no[ m uxu= u,~-~e u, u,~ w ........ , -..~-~D.I~E - Time is of the essence of" this Agreement. 11: shall be SUBCONTRACTOR’S obligation ~ conform to CONTRACTOR’S progress scheduls,subject to CONTRACTOR’S modifications, which are Incorporated herein by this referenc~ and madea p~irthereof, ~1’ the SUBCONTRACTOR reims I~J~ withthe progress schedule, the SUBCONTRACTOR has five (5) business days to respond in writing ~t~er f~;e. ipt- 0.f l~i.~ CONTRA, ~’rOR’S..schedule and It~ monthlymodifications thereaRer. Failure to respond in writing con~baP_.s acceptance of the CONTRACrOR.~ scheduie’~.h all of lis schedWetl durations, If, InOONTRACTOR’S ¯opinion, SUBCONTRACTOR is not supp y~ng a suffldency of workers or delNedng material with such p~mptnes~.as ~ pr~ent any deJay In

dellvered, or inst,~llerl on time~ CONTRACTOR shall have the dgh~. to direct SUBCONTI~ACTOI~ to rurhlsh addlb’orial labor ancl~ el: b.u~~and expense, to exp~lito deliveries of material, or f ~ddil~bnal labor shall not be available, SUBCON’I’RACrOR shail work overtime ~ such ~:tanl: as will be~ffident to speed up and complete the work inmmpll~an¢~ with the Contract DoL’uments, without any ~d_ditio.nal charge ~oSUBCONTRACTOR shall coopera~e in any way required by CONTRACTOR to rernedy the delay. Failure ~0 comply With ~e CONTRACTOR’S scheduJ@ as

by’ the Contract Documents shall be a material breach of contract. SUBCONTRACTOR ~iall l~p~r~ abd obtaln approval as required by theCon~o-~c~ oc~ent~ ~ all shop dra~ngs, detaiks~ samples~ a~nd do ~ Oth~ th~n~g~ n.~a~ and !nodenta~

(~ wlth the pD~gress schedule. Submisslon of as-built drawings for wor~ perrorme¢] aunng previous progress or nna~ p,~y~{,~,,~ p~,, ....v

OR’s du to ma~e any pa~ rot that pa~. ent p~ad. SU~Om~R~CTO~ sh~.I~ ~,o0.rdl,,~e_~~ .work ~.~ ~!.~isprecedent I:o CONTRACT. . ty " manner which will fadlltat~ ~a SUflloan~ comple~on or~ra~ors subcontractors, and of the CONTRACTOR. ~n a .. . . . . .w th that of all other con., . - -- " ¯ - ....-~ .......-~ - -erfo~,~ed and shall have the ~ight to de, de the time or order m

CONTRACTOR shall have ~rnp ¯ - " " " I ’ ien~’al a I matters mprese.nting the timely and...... ¯ ¯ " tailed ~r the rlon~l of th k of other subcontractors, and n g , . . : .....

D~.2~ /d~ Should SUBCONTRACTOR b~ d.e ayed In the prosecuLton or comp etion of the work by act, negl~-tT~ defaulL of OWNEP~ o~ AR~, or orCONTRACTOR;, or should SUBCQNTRACT..O..R be del .ay~d bywalldng for .m.atenals’ requlred by thls’ contract: to, be fumlshed by OWNEK. or COy.oNly ~;OeR, or

o er casual for whlch .%IBCONTRA~L’TOR =s not respons ble, Or by the combined action of the workers, in no way caused by,b damage. .c~..used .by.fire.or. th b/ " : I OR then the tlme fi×ed here=n for theory re~ui~ng 5-~i default ot collusion On the palt ,of $U8C .ONTR~-..CrOR, or m the event of a ockout by CONTP, ACT ,completion of tl’ie Work shail be extended the number of da~ ~i~ SUBCONTRACTOR has thus beendelayed~ but no allowance or extension shWl be madeunless.’a daim t~e~efore Is presented In wdting to the (~ONTRACTOR withlr~ forb/- eight (48) hours Of the commencement of such delay, and under no

" of corn letion be extended ~ a da~ Which will prevent CONTRACFOR, ~T0m compli~t~g .I~ entlre project wi~n the ~me thal;d .rcur~. rices shall the t~me P ; . .. ¯ --,- .. ...... , ~, -~,^~-;- -~- -~ =~-~, no~iflcatioo SIJBCONTRACTOI~ shall subml~ a detailed timeOWNER allows CONTRACTOR for such completlon, Wll:nln nrl:ee~=tz=j ~.,~,u=~ u.=~,= ~ .....Impact ana!ysis substantiating the delay. Failure to submit this impact analysis con~tutas waiver of 5UBCONq-RACrORS dghts for the delay.

SUBCONTRACTORS or OWI~ will be allowed t~¥ the SUBCONTRACTOR; pro~nen, however, mat m me ew.~, ~.u ,,obtains addRiona �~mpensa~on from OWNER on accounl: of such delays and for which subcontractor has provided nof]ceof said delay, SUBCONTRACTORshall be ~n~itled tO such porUon of the additional compensation so received by CONTRACTOR from OWNER as Is equitable under all of the drcums~ances.Notwll~-tandlng ~e foregoing, CONTRACTOR shall have ~e righl: t6 StJsPend workfor a reasonable time without payment Qf additional compensation,

" " ire CONTRACTOR ~ melee any claim a~ainst OWNER fOP such delays, and it is .spedfically agreed tha~ the Pallure ofNothing herein conl~med shall requ... . . - ’ ¯ " to a claim f~r damages ~galr~c CONTRACTOP,. ~n the~ oa~m a ains~ OWNER ~hall not entiBe SUBCONTRACTOR ny ......CONTRACTOR m prose~ate a?y -. .... g---;~. ~,,~,=~ m ~m’T~N’mACTOR aQrees to ay I~ prorate share of’ all costs add expens.es ~ncurred.event CONTRACTOR pmsec~es SUCh a 0a~m ag~. r~.~ .~?~,~,~ .-~.-.~-. L,- ~E ..... .’.---’ ,- ~--" faith and SUBCO~CTOR Shall fully cooperateprosecution ~ l~he dai;m, induding, but not llml~J~ ~o, ac~ua~ au:omey~ m~ ~n~,=u ,,, ~CONTP, ACTOR in the prosecution of the delta.

CHANGE~ TN TIIE WORK - SUBCONTRACTOR hereby agrees to make any and all changes, furnL~ the materials and perform the work thatE.i . . .................... ;--,~ ~,~H~n tO or redu~on tram the contract Price stated herein, and to prorateCONTRACTOR may require, without, nUlll~Ing ~Is agr~m~n~, ,=~ a ,==~the Contact Prlce. SUBCONTRACTOR shall adhere strictly to the plans and specifications unless a change is authorized in wd~Jng. 5UBCONTI~CTDR sh~ll

Subcontractor ~ 7

Attachment ’E’

INSURANCE REQUIREM:ENTS

Contractor shall procure and maintain for the duration Of the~ c0n[ract insurance, againstclaims forJuiCes to persons Or ~axnage~ toproperty which may axise from; 0rift c0rmectienwith, theperf0rmance of the work hereunder by the Contractor; hizagents, representatives,empl0yees or subcontractors. The cost 0fsuch insurance shall be ineludedin the Contractor’sbid.

D-1. Minimum Scope of Insurance

Coverage shall be at least as broad as:

1. Insurance Services Office Commercial General Liability coverage"occurrence’" form CG 0001 including products mad completed operations, X,C, U (explosion, collapse, underground); and

Insurance Services Office form number CA 0001 covering Afit0m0bileLiability, code 1 "any auto,, Or"~0de 2 "owned autos" and endorsement CA0025: Coverage als0 to include 6ode 8 "hired autos" and code 9 "non-owned"autos; and

3. Workers’ Compensation insurance as required by the Labor Code of the Stateof California and EmploYers Liability insurance; and

4. Builders’ Risk Iz~surance

D-2. Minimum Litnits .o.~In_s.uranc_e

Contractor shall maintain limits no less than:

Commercial G~neral Liability: $5,000,00.0 per occurrence for bodily injury,personal injury and property damage. If Commercial General LiabilityInsurance or other form with a general aggregate limit is used, either thegeneral aggregate limit shall apply separately to this pr0jeet/loeation or thegeneral aggregate limit shall be twi~s the required occurrence limit; and

Automobile Liability: $1,000,000 combined single !imit:per accident forbodily injury arid ~roperty damage; and.

Workers’ Compensation-and Emp.loyers Liability: Workers’ Compensationlimits as required bythe Labor Code of.the State o f California and EmPloyersLi’ability limits orS!,000,000 per accident; add.

Builder’s Risk! Completed Value of the projeot. No deductible shall exceed$50,ooo

8ATTACHMENTS I-6-ZA 04-23:07 CONFORMED SET 01-21-08 03/22/06

Attachment ’E’

D-3

D-4.

Deductibles and Self-Insured Retentions

Any deductibles or.self-insured retentions must be declared t~, and approved by, theCity. At the option Of the City, either: the insurer, shall reduce or eliminate suchdeductibles oi~ self-insured retentions as respects the City, its officials, employees,agents and contractors; or the Contractor shall procure abond ~uarauteeing payment.ofl0sses and related investigations, claim administration and defense expenses in anamount specified by the City.

Other Insurance Provisions

The policies are to contain, orbe endorsed to contain, the following provisions:

1. General Liability and Automobile Liability Coverages

a. The City, its officials, employees, agents and contractors are to be covered asadditional insureds.as respects: liability arising out of activities performed by, oron behalf of, the ContraCtor; products and completed operations Of theContractor; premises owned, leased or used by the ContraCtor; or automobilesowned, leased, hired or borrowed by the Contractor..The coverage shall containno s’peeial limitations 09 the scope o fprotection afforded to the City, its officials,employee.s, agents and contractors.

b. The Contractor’s insurance coverage shall be primary insurance as respectsthe City, its officials, employees, agents and contractors. Any insurance or self-insurance maintained bY the City, its officials, employees, agents or contractorsshall be excess ofthe contractor’s insurance and shall not contribute with it.

c. Any failure to comply with reportingprovisions of.the policies shall not affectcoverage provided to the City, its officials, employees, agents, or contractors.

d. Coverage shall state that the Contractor’s insurance shall apply separately toeach insured against whom claim is made or suit is brought, except with respectto the limits of the insurer’s .liability.

2. Builders’ Risk policies shall contain the following provisions:

a. City of San Jose shall be named as loss payee.b. The insurer shall waive all fights of subrogation against the City of San

Jose

3. All Coverages

Each insurance policy required by this .clause shal! be endorsed to state thateov.erage shall not be suspended, voided, canceled, reduced in coverage or inlimits except after thirty (30) days’ prior written notice has been given to the City.

9ATTACHMENTS 1-6-ZA 04-23-07 CONFORMED SET 01-21-08 03/22/06

Attachment ’E’

D-5. Acceptability of Insurers.

Insurance is to be placed with insurers acceptable to the City’s Risk Manager.

D-6 Verification of Coverag_e

Contractor shall furnish the City with certificates of insurance and with originalendorsements affecting coverago required by this clause. The certificates andendorsements for each insurance policy are to be signed by a person ~uthorized bythat insurer to bind coverage on its behalf. Copies of all the requiredENDORSEMENTS shall be attached to the CERTIFICATE OF INSURAN.C.E_E. whichshall be provided by the contractor’s insurance company as evidence of the stipulatedcoverages. This Proof of Insurance sha!l then be mailed to the following address orany subsequent address as may be directed in writing by the Risk Manager:

CITY OF SAN JOSEc/o Risk Management; Fin’.,mceCITY HALL,200 E. Santa Clara St,San Jose, California 95113

Snbeont~ac.tor____Ss

Contractor shall include all subcontractors as insured under its policies or shall obtainseparate certificates and endorsements for each subcontractor,

10ATTACHMENTS 1-6-ZA_04-23-07_ CONFORMED SET 01-21-08 03/22/06

¯ Attach ment ’E’

¯ Rough grading (grade is to be received by SUBCONTRACTOR ate- 1/10 of 1’-0" offinish grade and sloped to drain)

¯ 5urveying~ bench markst radius points .¯ Fencing O~i~l!’~f~ ~’~..,~O!-~Y ~L¯ copper pipe Inst~llation and/or repair¯ Repair of landscape and irrigation damaged by others¯ Water feature¯ Drinking fountains

SECrZON 6,2 - CLAR]FrCAT~ONS¯ Price of $22,411 accepte~d for E & I Of Section 02505¯ Pri~ii~] of $104~112 accepted for F & I of items At B, C, G~ Ht I and 3 in Section 02870¯ Pricing of $187,737 accepted for F & I of Graenroof Plantingt lightweight soil and


SECTION 7 - SPEC.IAL PROVISIONS

This notice required by Business and Professions Code 7030 is an Inb~gral part of this Agreement:Contrac-i~rs ar~ required by law to be licensed and regulated by the.Contractors" ...... State License Board which hasjurisdiction to investigate complaints against Contractors if a complaint Is filed Within three years of the date of thealleged violation..: Any questions concerning a Contractor may bel referred to The Registrar, Contractors" State UcenseBoard, P.O: Box 2600; Sacramento, CA 95826.Conl~actors are required by law to be licensed and regulated by the Contractors’ State License Board.Any questions concerning a contractor may be referred to the regis~ar of the board whose address is:

Contractors" state License Board - 1020 "N" Street, 5acramento~ CA 95814

SECTiON 8 - INSURANCE

SUBCONTRACTOR shall, at his expense, procure and maintain insurance on all of his operations, in companiesacceptable to CONTRACTOR, as follows: Workers’ Compensation and Employer’s Uability Insurance. Workers’Compensation insurance shall be provided to the full extent required by state law, and shall include a WorkersCompensation Waiver of Subrogation Endorsement (thts endorsement must be attached to the Worker’s CompensationCertificate). If there is an exposure of injury ~o SUBCONTRACTOP,’S employees under the U.S. Longshoremen’s andHarbor Workers’ Compensation Act; the Jones Act or. under laws, regulations or statues applicable to maritimeemployees, coverage shall be induded for such injuries or claims. Employer’s liability ir~surance shall be in an amountno tess than $1,000,O00. each employee for bodily injury and disease..

General Liability insurance. SUBCONTRACTOR shall carry Comprehensive General Liability or Commercial GeneralLiabliity insurance covering all operations by or on behalf of the SUBCONTRACTOR providing insurance for bodily injuryliability and property damage liability for the limits of liability Indicated below and including coverage for:

l. Premlse~ and Operations2. Products and Completed OperatiOns3. Contractual Uability insuring the obligaUons assumed by SUBCONTRACTOR in this

Agreement4. Broad Form Property Damage (Including Completed Operations}5. Explosion, Collapse and Underground Hazards6. Personal Injury Uability

A. Limits of Uabillty ~ All Policy Forms1. If SUBCONTRACTOR canies Comprehensive General Liability Insurance, the limits of liability shall not be

less than

~$81004¥~@ aggregate P/#

" j~/~.If SUBCONTRACT.OR_carries Commercial General Liability insuran#~ the limits of liability shall no~ be less

" " "’-’a a e ...... ~-"$1,000,000 each occurrence combined single limit for bodi y Injury and prope~ m g$I,000,000 for Personal Injury Uability$2,000,000 Aggregate for Prc~ducts-Completed Operations$2,000,000 General Aggregate

The "general aggregate" timit shall apply separately to SUBCONTRACTOR’S work under this contract.Subcontractor

Attachment ’E’

B. Spedal "Claims Made" and "Modified occurrence" Policy Form Pmvlsions. SUBCONTRACTOI7 shall not pmvldeGeneral Uabillty Insurance under a "Claims Made" and "Modified Occurrence" Commerclal General Uabillty form.

Additional Insured. With respect to whichever General Liability policy Form is furnished as required above:1. CONTRACTOR, its officers, directors and employees and OWNER and its employees a’nd other parties

as required by contract and the Architect shall be named as additional insured. The Products-Completed Operations coverage shall be maintained through all required statutory periods applicable to theProducts-Completed Operations cov.erage inclusive of ~ddltional insured provisions in all future renewals ofthe coverage.

2. The policy shall be endorsed to ~pulate that the insurance afforded ~he additional insured shall appiy asprimary insurance and that any. other insurance maihtained by CONTRACT~3R or OWNER shall be excessonly and shall not be called upon te contribute with SUBCONTRACTOR’$ insurance.

3. Coverage for the CONTRACTOR, its officers, directors and employees and OWNER and ite employeesand other parties as required by contact as additional insured shall be.provided by a polio/provision oP byan endorsement providing coverage at lease as broad as Additional Insured (Form B) Endorsement FormCGZ0tO (1~./85-) or its equivalent as published by the Insurance Services Office (~SO)

~ut~mobile Liability Insurance_ SUBCONTRACTOR shall carry automobile liability insurance, induding coverage for allowned, hired and non-owned automobiles. The limits of liability shall not be less than $1.,000,000. Combined SingleUmit each accident for Bodily Insure and Property Damage combined.

Aircraft Insurance If the SUBCONTRACTOR or their lower tier subcontractors use any owned, leased, chartered orhired aircral~ of any type (including helicopters) in the performance of this contract, they shall maintain aircraft liabilityinsurance in an amount of not less than $5,000,000. per occurrence including Passenger Uability. Evidence ofcoverage in the form of a Certificate of Insurance induding additional insured status, as required by the general liabilitycoverage, shall be provided prior to the start of work to CONTRACTOR.

Pollution Liability If SUBCONTRACTORS are required to perform remedial hazardous matedal operations such asasbestos containing .materials, contaminated soil etc., they must, in addll~on to the above requirements, carry a"Cont~ctor’s Pollution Uabilib/" policy with limits not less than $2,000,000 per occurrence and not less than$2,000,000. aggregate for Bodily Injury, Personal [njury and Properb/Damage naming CONTRACTOR and OWNER asan additional insured including contractual liabilibl coverage. If SUBCONTRAL-I-OR‘ or their lower ~er subcontractorshaul .hazardous waste they must carry Automobile Liability insurance with a $2,000,000 combined single limit peroccurrence for Bodily ];njury and Property Damage applicable to all hazardous waste hauling vehicles and include MCS90.

Pro~..~sional Uabllity A $1,000,000. Professional Liability insurance policy shall be carried if SUBCONTRACTOR or theirlower tier subcontractor is to provide design or design/build services to the project. Such insurance shell includecoverage for contracL-dal liability. Evidence of coverage in the form of a Certificate of insurance shall be provided priorto the start of work to CONTRACTOR and such coverage shall be maintained for two (2) years following completion ofthe project.

Certificates of Insurance. A Certificate of insurance Including endorsements as required above, as evidence ol= theinsurance required by this Agreement, shall be furnished by SUBCONTRACTOR tO CONTRACTOR before any workhereunder is commenced by SUBCONTRAC3XDR, CONTRACTOR reserves the dght to request and SUBCONTRACTORshall provide upon demand a certified copy of all policies of insurance required by this Agreement. The Certificates ofInsurance shall provide that there w~11 be no. cancellation or reduction of coverage without thirty (30) day’s prior writtennotice to OWNER.

In the event the SUBCONTRACTOR fails to maintain any insurance coverage required under this Agreement,CONTRACTOR, may maintain sucli coverage and charge expense to SUBCONTRACTOR, or terminate thls Agreement, orhold the SUBCONTRACTOR accountable for all costs incurred by CONTRACTOR as a result of SUBCONTRACTORSfailure to maintain the proper insurance. Upon written request from CONTRACTOP., SUBCONTRACTOR shall providecomplete policy or policies to CONTRACTOR within ten (10) days.

The required insurance shall be subject b~ the approvalof CONTRACTOR and OWNEK, but any acceptance of InsuranceceKdficates by CONTRACTOR or OWNER shall in no way limit or relieve SUBCONTRACTOR of the duties andresponsibilities bY SUBCONTRACTOR in this Agreement. If higher lira ts or other..forms of insurance are required in theContract Documents, SUBCONTRACTOR will comply with such requirements.

Subcontractor

Attachment E


. _ _~ .~ ~.~.~,e ~H’A~ ’whlch are i~Cefn0~ted here]~ by ¯ s reremn~ an~ ma~e’.a pa~ ~e~r; Lr me ~uu~um i ~ =uK ~s .~uu w~uSUD]~ ~ul~,~l~O ll~’l~UU’~I - r . . - " . ..... . ......... ’: " "’’"" ~";’ ¯ " " ’ " " " ’ " " .... " ’ " thl¯ e progr~s s~edule, ~e SUBCONT~OR has five (s) bu~ne~ days ~0 res~nd jn Wd~g a~:~p~.~ .~~S.~!~.~Q~ l~.~n, y

CO~OR’S o~in~0n, SUB~NT~QR iS not supplying ~ m~d~.~: ~ wor~e~ or dm~ng m~a!Wlm. ~m p~p~:~ ~o 9re .en~... y. ~.... y..the pmgr~ of~e work, or Is faili6g in any r~,~Big~;gY~.~.:~.~.¢~ ~d~~,~5,~}~

and ~n~, ~ eXP~ d~ivedes of m~t~a; oF!~ ~d~o~lil~r ~a~l n~t ~ ~vailabl~; :SuBco~QR ~![ ~,?~m~ ~0:~ ~nt as~lll 6e~cient to spe~: up a~d complete ~e wo~-i~.~p!l~�~ wi~ ~e cOa~ ~n~ W!~.~. a.9~;: a~i.~0p~

r~uima by: ~6 e6~k~ D0~men~ shall be a material bma~ or con~. SU~O~OR ~au ~P~m ~Om ~.n pM .... ~. . -~Con~ D~umen~ fOP aB ~5~p d~ngs, ~etails, sampl~, and do all o~e~.~ings n~a~ and indd~l ~ ~ ~gn Of i~ ~e~ i~~wi~ the p~gr~s ~edule. Submission of as-built drawln~ ~r wo~ pe~rmed ~dff~g previ6~ p~g~s’or final p~ym~ perl~ is an ~p~s condi~on

pre~en~ ~ ~O~’S du~ to make any payment fer that payment P~d. B~e~O~ll:~°~d!~~:~ wo~ m~red b~ ~s Agreementwire mat .Of all ome~c0n~0m, ~b~ntrac~s,. ~d Of me co~oR.tn a maDne~ wh!~ :wll .~!i~t~:.~ .~:~e~On O~ ~

have 9" the

D.2 : Should’ SUBCO~QR be delayed in the p~se~Uon or comple~oa of ~e woeK by a~ negl~ defaul~ of OWNER, oF~ ~CO~R~ or ~5ould 5U~ON~OR be ~la~ ~ ~g ~r.~teda S r~u md by ~hls ~n~a~ to, be ~ml~ed by OWNER ot CONT~OR, or

~mage ~ ~ fire oro~ ~ual~ ~r~l~ SUBGD~OR is not res~nslble~ or by ~e combined a~onof ~e worke~, in no way ~us~ by,~ " ~-=’~ ’~=~ ~-~;.,~ ~-~,’;.~- -n ~ -a~ 0f SUBGO~ 0~ i~ ~e e~e~ 0~ a 10~0u~ by C0~OR,~en ~e ~m~ ~xed h~r~ for

. ; ....... : .... a m~ umber or aa ma~ ~u~u=~ =~, ~ ,,~= =,u= w~,, ~=~=, .....0 ........ ¯co,lemon of ~e.w~ ~all ~e e~e~9~ __.n: . .a. ~~#G~it~ ~ ~lhh~ ~3 h~ ’ f ~e m~~t of ~ d~y, and under no

OWNER allows ~O~OR for ~ comple~on, wl~ n~e~k~l ~enu~r u#y= u~ ~uImpa~’ analysis Sub~n~a~ng ~e delay. Failure ~o submlt this impa~ analy~s ~n~es walv~ of SUB~O~ fi~h~ £or ~e delay..

D.3 No rialtos ~or ~ddl~onal comp~on or damag~ ~r delays, whe~er in ~e ~mlshing of materlal by CO~O~ o1 delays by o~er- su~o~o~or OW~ Will be allowed by ~s ~B£O~OR; pro~d~, however, ~at in ~e event, and in ~ event only, ~atobtalnS ~di~b~a mmp.ensa~on from OWNER on ~mun~ ~f ~ch delays a~ for whic5 sub~a~r6as ~Vided ~0~ce Of ~id ~elay,shall be ~h~ to ~h pd~on 0f ~e add ~ 0nal c~mpe~O~s~e Y~ by ¢ONT~OR ~om OWNER &sls equi~ble under all of the drcum~nces.No~l~ndlng ~e foteg~pg, CON~R sha!l have ~ .rlg~ ~o suspendwo~ for a reasonable ~me .wi~out payment of addi~onal mmpensa~on.No~Ing herein confined ~all~uim CO~OR ~. make any dal~ ~ains~ OwN~ ~oP ~ch delaYS, and it is spedfically agreed.~a~ ~e fallure ofCO~OR ~ p~se~te any s~ dalm against OWNER shall no~ ~e SUBCON~OR to any dalm ~or damag~ agaln~ CO~OR. In theevent ~~R pr~ m~ a dalm agai~ QWN~i~U.~O5 agree~ ~o pay I~ pro~te share of all cos~ and ~pens~ in,wed In ~epr0~ff 6~ ~h~ ~al~ ~fldUd~ng, but no~ llml~d t0~ a~al a~ey~ tees mcurre~ in good fai~, and SUBCON~OR ssall ~lly coope~ wi~

E.~ CHANGES ~N THE WORK - SUBCO~OR hereby agrees ~o make any and all ~nges, furn~h the ma~dals and peffo~ ~e wo~ ~atCO~OR may require, ~ou~ nulli~ing ~is agreement, at a reasonable addison to or redu~on Pore ~e Con~a~ Price stated herein, and ko pro~the Con~ Pri~. SUBCONT~OR ~all adhere strictly to ~e pla~ and sp~ff~ons unl~s a ~ange is au~odzed in wri~ng. SUBCONT~OR shall

Subcontra~or ~., 7

Attachment ’E’

SECTION 2 PROPOSAL REQUIREMENTS AND CONDITIONS

The name and the location of the place of business ofeach subcontractor who will perform work or labor orrender service 1o the Contractor in or about theconstruction of the work or improvement, or asubcontractor licensed by the State of California who,under subcontract to the Contractor, specially fabricatesand installs’ a portion of the work or improvementaccording to detailed drawings contained in the plansand Specifications, in an amount in excess of I/2 of onepercent of the contractor’s total, bid or, in the Case ofbids or offers for the construction of streets or highways,including bridges, in excess of 1/2 of one percent Of theContractor’s total bid or $10,000, whichever is greater.The portion of the work which will be done by eachsubcontractor.The COntractor shall list only one subcontractor for eachportion of the work as defined by the Contractor in theirproposal.If the Contractor fails to specify a subcontractor or if theContractor specifies more than one subcontractor for thesame portion bf Work to be performed Under the contractin excess of 1/2 i~f one percent of the Contractor’s totalproposal, the Contractor agrees that it is fully qualifiedto perform that portion itself, and that the Contractorshall perform that portion of the work.If after award of the contract, the Contractorsubcontracts, without obtaining the consent Of the Cityas provided herein, any such portion of the work, theContractor shall be subject to the penalties set forth inSection 2A.15G below.

Circumvention by a Contractor of the requirements Of this Section by thedevice of listing a subcontractor who will in turn sublet portions constituting themajority of the work covered by the contrae-t, shall be considered a violation of thisSection and shall subject that Contractor to the penalties set forth in Section2.1.15G below.

2,1.15Baccepted shall:

Substitution of Subcontractors.- No contractor whose bid is

Substitute any person as subcontractor in place of thesubcontractor listed in the original bid, except where theCity, or its duly authorized officer., may, except asotherwise provided, have Consented to the substitUtiOn ofanother person as a subcontractor in any of the followingsituations:

(a) When the subContraCtor listed ii~ the bid afterhaving had a reasonable opportunity todo sofails or refuses to execute a written contract,when that written contract, based upon the

2-8.

Attachment ’E’

PROPOSAL REQUIREMENTS AND CONDITIONS SECTION 2

(b)

(d)

(0

(g)

general terms, Conditions, plans andspecifications for the project involved or ~eterms of that subc0nti-actor S written bid, ispresented to tile subcontractor by: theContractor.When the listed subcontractor becomesbankrupt or insolvent.When the listed subcontractor fails or refuses toperform its Subcontract,When the listed subcontractor fails or refuses tomeet the bond requirements of the Contractoras set forth in Section 2-1.15D, below.’When the Contractor demonstrates to the City,subject to the further provisions set forth inSection 2-1.15C, below, that the name of thesubcontractor was listed as the result of aninadv~rtdnt clerical error.When the listed subcontractor is not licensed atthe time of bid pursuant to the ContractorsLicense Law on non-federally funded projectsor at the time of award on federally fundedprojects.When the City determines that the work.performed by the listed subcontractor issubstantially unsatisfactory and .- not inSubstantial accordance with the plans andspecifications, or that the subcontractor issubstantially delaying Or disrupting the progressof the work.

Prior to approval of the Contractor’s request for asubstitution of subcontractor, the City Shall give noticein writing to. the listed ~ubconlraetor of the Contractor’srequest to substiti~te and of the reasons for the request.The notice shall be served by Certified or registered mailto the last known address of the subconwactor. Thelisted subcontractor who has been so notified shall have5 working " dayS within which to submit writtenobjections to the substitution to the City. Failure to filethese written objections shall constitute the listedsubcontractor’s consent f0 tlie Substitution.If written objections.are filed, the City shall give noticein writing of at least 5 working days to the listedsubcontractor of a hearing by the City on theContractor’s request for ~ubstitution.Permit .any subcontract to be volunladly assigned ortransferred or allow it to be. performed by anyone otherthan the subcontractor listed inthe original bidl wilh0utthe consent of the City.

2-9

Attachment ’E’

SECTION 2 PROPOSAL REQUIREblEN~ AND CONDITIONS

Other than in the performance of change orders causingchanges or deviations from the original contract, subletor subcontract any portion of the work in excess of I/’2of One percent of the prime contractor’s total bid as towhich the Contractor’s original bid did not designate asubcontractor.

2-1.15C Claims of Inadvertent Clerlcal Errorin Listing ofSubcontractor. - The Contractor as a condition to asserting a claim of inadvertentclerical error in tim listing of a subcontractor shall within 2 working days after thetime of the bid opening by the City gi~ie written notice to the City and copies ofthat notice to both the subcontractor the Contractor claims to have listed in erro.rand the intended subcontractor who had bid to the Contractor prior to bid opening.

Any listed subcontractor who has been notified by the Contractor inaccordance with this section as to an inadvertent clerical error shall be allowed 6working days from the time of the bid opening within which to submit to the Cityand.to the Contractor written objections to the Contractor’s claim of inadvertentclerical error. Failure of the listed subcontractor to file the written notice within the6 working days shall be primary evidence of the listed subcontractor’s agreement¯ that an inadvertent clerical error was made.

The City shall, after a hearing hnd in the absence of compelling mason tothe contrary, consent to the substitution of the intended subcontractor if:

The Contractor, the subcontractor listed in error, and theintended subcontractor each submit a declaration oraffidavit to the City, along with such additional evidenceas the parties may wish to submit, that an inadvertentclerical error was in fact made, provided that thedeclarations or affidavits from each of the 3 parties arefiled within 8 working days from the time of the bidopening, orThe declarations or affidavits are filed by both theContractor and the intended subcontractor within thespecified time but the subcontractor whom theContractor claims to have listed in error does not submitwithin 6 working days, to the City and to the Contractor,written objections to the Contractor’s claim ofinadvertent clerical error as provided for in this section,orThe declarations or affidavits are filed by both theContractor and the intended subcontractor but the listedsubcontractor has, within 6 working days from the timeof the bid opening, submitted to the City and to theContractor written objections to the Contractor’s claimof inadvertentclerical error, the City shall investigate theclaims of the parties and shall hold a hearing todetermine the validity of those claims.

2-1.15D Subcontractors Bonding Requirements. - It shall be theresponsibility of each subcontractor submitting bids to a Contractor to be prepared

2-10

Attachment ’E’

RECEIVED DPW - San Jose...substitution 0f Green .Growth Industries ("GGI~’) on the Happy Hollow...

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Transcript of RECEIVED DPW - San Jose...substitution 0f Green .Growth Industries ("GGI~’) on the Happy Hollow...