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HomeMy WebLinkAboutAGMT - Post Earthworks Constructors (3-Year Sand Berm) & Amendments 1-4AMENDMENT NO.4 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 4 ( "Fourth Amendment "), is made and entered into August 14, 2017, by and between the City of Seal Beach, a California charter city ( "City ") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor"), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement'), as amended by Amendment No. 1 dated September 14, 2015 ( "First Amendment'), Amendment No. 2 dated December 14, 2015 ( "Second Amendment'), and Amendment No. 3 dated April 12, 2016 ('Third Amendment "), to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ('Project'). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor. C. The First Amendment provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. D. The Second Amendment provides for an additional scope of work during Year One of the additional two -year term, and specifies the compensation to be paid to Contractor for that additional work in the amount of $90,274. E, The Third Amendment provides for a supplemental scope of work during Year One of the first two -year extension and payment of $45,000 to Contractor for that supplemental work. F. The City has determined the need for further supplemental work to remove excess sand from the beach behind certain homes along the City beach during calendar year 2017. G. Pursuant to the authority provided by its City Charter and Chapter 3.20 of the Seal Beach Municipal Code, the City solicited bids from vendors experienced in the work needed to carry out the excess sand removal work. H. City received bids from three vendors for the excess sand removal work, and City determined that Contractor submitted the lowest acceptable quotation. I. City and Contractor wish to amend the Agreement a fourth time to (i) provide for an additional two -year term from September 14, 2017 to and including September 14, 2019; (ii) authorize additional supplemental excess sand removal work during calendar year 2017 covered by Contractor's 2017 bid; and (iii) specify the compensation to be paid to Contractor for that excess sand removal work. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1.1.3 to read as follows: 1.1.3 Excess Sand Removal Work. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all excess sand removal during calendar year 2017 ( "Excess Sand Removal Work ") identified in Contractor's April 26, 2017 proposal, attached hereto as Exhibit J and incorporated herein by this reference as though set forth in full. In the event of any material discrepancy or conflict between Exhibit J, on the one hand, and any provision of this Agreement or the Contract Documents, on the other hand, the provisions of this Agreement shall prevail." Section 2. Section 2 of the Agreement is amended to read as follows: "2. Effective Date. This Agreement, originally effective as of September 10, 2012 (the "Effective Date "), for 36 months, and extended pursuant to the First Amendment for one additional two -year term to and including September 14, 2017, shall remain in full force and effect for an additional two years from September 14, 2017 through and including September 14, 2019, unless sooner terminated as provided in the Agreement." Section 3. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.4 to read as follows: "3.4 Payment for Second Two -Year Extension. For performing and completing the Work for the second two -year extension for the time period extending from September 14, 2017 through and including September 14, 2019, in accordance with the Contract Documents, City shall pay 2 Contractor, in full compensation therefor, the total amount of $275,366 (two hundred seventy-five thousand three hundred sixty -six dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents, in accordance with the following breakdown: Year One Extension - $180,366.00 (backpass) Year Two Extension - $ 95,000.00 (non backpass) Total -- $275,366.00 Said sum shall constitute payment in full for all Work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents, The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization." Section 4. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.5 to read as follows: "3.5 Payment for Excess Sand Removal Work. For performing and completing the Excess Sand Removal Work in accordance with Subsection 1.1.3 and the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $19,950 (nineteen thousand nine hundred fifty dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all Excess Sand Removal Work performed pursuant to this Subsection 3.5, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Excess Sand Removal Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Excess Sand Removal Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work greater than this amount requires prior City Council authorization." Section 5. Except as expressly modified or supplemented by this Fourth Amendment, all other provisions of the Agreement shall remain unaltered and in full force and effect. In the C event of a conflict between the provisions of this Fourth Amendment and the provisions of the Agreement, First Amendment, Second Amendment or Third Amendment, the provisions of this Fourth Amendment shall control. IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be executed and attested by their proper officers thereunto. CITY OF SEAL BEACH POST EARTHWORKS CONSTRUCTORS, INC. id PB�t Jill gram, City Mana Chris Po t, President (type /print name and title] (Please note, two signatures required for corporations —d -, Corp. Code 013, unless corporate documents ize only one person to sign this Agreement on of the corporation.) 4 ACb os CERTIFICATE OF LIABILITY INSURANCE DATE t.- D Y) 016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endomement(s). PRODUCER CONTACT Jeanette Maloney FIIIDD Insurance Services, Inc. PHONE 5 -9731 F" -4453 o E9( ) , No): (562) 439 3633 East Broadway E-M ess: Omaloney @hmbd.com INSURER(SI AFFORDING COVERAGE NAICe INSURERA:Flrst Mercury Insurance Cc Long Beach CA 90803 -6035 INSURED INSURER B.American Fire and Casualty Company 24066 INSURER C:SeoUrity National Insurance Company Post Bron Construction, Co., DBA: Post Earthworks INSURER D:Tr'aveler' s Indemnity Company of CT Constructors Inc INSURER E: $ 50,000 2967 East Coronado Street 1 INSURER F: $ Excluded Anaheim CA 92806 COVERAGES CERTIFICATE NUMBER:W /C Renewal 9/16 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR I TYPE OF INSURANCE ADDLTSUBR POLICY NUMBER POLICY EFF MMIDDIYYYY POLICY E%P MM /DDl1^/YY LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE 1 $ 1, 000, 000 A CLAIMS -MADE � OCCUR DAMAGETORENTED PREMISES Ea occurrence $ 50,000 MED EXP(An, we person) $ Excluded WA -CGL- 0000057576 -02 9/11/2016 9/1112017 PERSONAL S ADV INJURY $ 1,000,000 GEM L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $ 2,000,000 POLICY �JECT LOC PRODUCTS - COMPIOP AGG $ 2,000,000 $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 B X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS 13AA56872081 9/11/2016 9/11/2017 BODILY INJURY (Par Person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ NOWOMED HIRED AUTOS AUTOS - Bus Auio Enhncml EMt $ UMBRELLA DAB X OCCUR EACH OCCURRENCE $ 4,000,000 AGGREGATE $ 4,000,000 A X E %LESS LIAR CLAIMS -MADE DED RETENTION$ $ CA- EX00000057647 -02 9/11/2016 9/11/2017 C WORKERS COMPENSATION AND EMPLOYERS'DABIDtt YIN ANY PROPRIETORIPARTNERIEXECUTIVE OFHCERNEMBER EXCLUDED? (Mandatory In NH) NIA SWC1126967 9/30/2016 9/30/2017 X STATUTE�OTIH $ 1, 000, 000 E.L. EACH ACCIDENT E.L. DISEASE -EA EMPLOYE $ 1000,000 DESCRIPTIObN OFF OrPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1 '000,000 D Hired Equipment I 9/11/2016 9/11/2017 Limit of Insurance $200,000 Physical Damage DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) Re: CIP No. EM1502 (Beach Nourishment) Additional Insured, primary 6 waiver coverage is provided on a blanket basis per attached endorsements. Liability CG2033 04/13, CG2037 04/13, FMICGL1002 (10/15) S FMICGL2490 (10/13). Auto CA88100113. Workers Comp WC04 03/06. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2014/01) INS025 (201401) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Seal Beach THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Office of the City Clerk ACCORDANCE WITH THE POLICY PROVISIONS. 211 8th Street AUTHORIZED REPRESENTATIVE Seal Beach, CA 90740 Todd Miller /GOWENS ACORD 25 (2014/01) INS025 (201401) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Policy #WA -CGL- 0000057576 -02 COMMERCIAL GENERAL LIABILITY CG 20 33 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - AUTOMATIC STATUS WHEN REQUIRED IN CONSTRUCTION AGREEMENT WITH YOU This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART A. Section II —Who Is An Insured is amended to include as an additional insured any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy. Such person or organization is an additional insured only with respect to liability for "bodily injury', "property damage" or "personal and advertising injury" caused, in whole or in part, by 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured. However, the insurance afforded to such additional insured: 1. Only applies to the extent permitted by law; and 2. Will not be broader than that which you are required by the contract or agreement to provide for such additional insured. A person's or organization's status as an additional insured under this endorsement ends when your operations for that additional insured are completed. B. With respect to the insurance afforded to these additional insureds, the following additional exclusions apply: This insurance does not apply to 1. "Bodily injury", "property damage" or "personal and advertising injury' arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: a. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or b. Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage ", or the offense which caused the "personal and advertising injury", involved the rendering of or the failure to render any professional architectural, engineering or surveying services. CG 20 33 0413 0 Insurance Services Office, Inc., 2012 Page 1 of 2 2. 'Bodily injury" or "property damage" occurring after. a. All work, including materials, parts or equipment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or b. That portion of "your work" out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project. C. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement you have entered into with the additional insured; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 33 0413 © Insurance Services Office, Inc., 2012 Page 2 of 2 POLICYNUMBER: WA -CGL- 0000057576 -02 COMMERCIAL GENERAL LIABILITY CG 20 37 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided underthe following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location And Description Of Completed Operations As required by written contract executed prior to the "bodily injury" or Any location where "your work" is performed, but only with respect to "property damage ". completed operations covered under this policy for "Commercial Construction ". "Commercial Construction" means all construction activity that is not "Residential Construction ". "Residential Construction" means any construction operations, work or activities performed on any "residential property ". "Residential property' means any of the following types of buildings, units or structures: single or multi - family dwellings, condominiums, townhomes including zero lot line townhomes, cooperative apartments, time - shared properties, and the entirety of any commercial or mixed use building, unit or structure of which any of the foregoing forms a part. "Residential property" also includes any common areas and infrastructure associated with any of the foregoing. Any building, unit or structure that becomes or is converted to "residential property" shall be deemed to be "residential property" as of the date of its original construction. "Residential property" does not include apartments that are not any of the foregoing and that are intended to be leased or rented out to others. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury' or "property damage" caused, in whole or in part, by "your work" at the location designated and described in the Schedule of this endorsement performed for that additional insured and included in the "products- completed operations hazard ". However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III — Limits Of Insurance: If coverage provided to required by a contract or will pay on behalf of the amount of insurance: the additional insured is agreement, the most we additional insured is the 1. Required by the contract or agreement; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 37 04 13 C Insurance Services Office, Inc., 2012 Page 1 of 1 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NONCONTRIBUTORY - OTHER INSURANCE CONDITION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART The following is added to the Other Insurance Condition and supersedes any provision to the contrary: Primary And Noncontributory Insurance This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under this policy provided that: (1) The additional insured is a Named Insured under such other insurance; and (2) You have agreed in writing in a contract or agreement prior to the injury or damage that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. However, the insurance provided under this endorsement will not apply beyond the extent required by such contract or agreement. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. This endorsement forms a part of the Policy to which attached, effective on the inception date of the Policy unless otherwise stated herein. (The following information is required only when this endorsement is issued subsequent to preparation of the Policy.) Endorsement effective 9/11/2016 Policy No. WA -CGL- 0000057576 -02 Endorsement No. Named Insured Countersigned by F M I C -G L -1002 (10/2015 ) Policy #WA -CGL- 0000057576 -02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PMT SCHEDULE Person or Organization: Any Person Or Organization You Have Agreed In A Written Contract To Add As An Additional Insured On Your Policy Provided The Written Contract Is Executed Prior To The "Bodily Injury", "Property Damage" Or "Personal And Advertising Injury" Effective Date:The later of the effective date of this policy, the date of this endorsement, or the date on which "your work" first started on the project to which this endorsement applies, but in no event later than the policy expiration date or applicable earlier termination date of this policy. The following is added to Paragraph 8. Transfer Or Rights Of Recovery Against Others To Us of Section IV — Conditions: We waive arry right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for injury or damage arising out of your ongoing operations. This endorsement applies only: 1. to ongoing operations performed by the Named Insured for the person or organization named above on or after the effective date of this endorsement and 2. when you and such person or organization have agreed in writing in a contract or agreement entered into prior to the loss or occurrence that such right of recovery is waived; and 3. when the 'suit" for damages against the person or organization in the Schedule is based on the Named Insured's sole negligence. Subrogation shall not be waived with respect to any liability arising directly or indirectly out of any of the following actions of persons or organizations named above: 1. 'Professional services" 2. Modifying or changing specifications withoutthe express written consent of the Named Insured; or 3. Any activities beyond the scope of monitoring the progress of the Named Insured. For the purposes of this endorsement, "professional services" includes but is not limited to the totting. 1. Preparing, approving, recommending, or failing to prepare, approve, or recommend maps, drawings, opinions, reports, surreys, change orders, designs, specifications, hazard assessment plans, response actions, abatement methods or products, air monitoring plans, or insurance requirements; 2. Supervisory, inspection, training, or engineering services; and/or 3. Monitoring, testing, analysis, legal, accounting, architectural, medical, processing, consulting, or advisory services. ALL OTHER TERMS AND CONDITIONS OF THE POLICY REMAIN UNCHANGED. This endorsement fortes a part of the Policy to which attached, effective on the inception date of the Policy unless otherwise stated herein. (The following information is required only when this endorsement is issued subsequent to preparation of the Policy.) Endorsement effective Policy No. Endorsement No. Named Insured FM IC -GL- 2490(10/2013) Countersigned by AUTO Policy f1BAA56872081 COMMERCIAL CA 88 10 01 13 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO COVERAGE ENHANCEMENT ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage afforded by this endorsement, the provisions of the policy apply unless modified by the endorsement. COVERAGEINDEX OBJECT PROVISION NUMBER ADDITIONAL INSURED BY CONTRACT, AGREEMENT OR PERMIT 3 ACCIDENTAL AIRBAG DEPLOYMENT 12 AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS 19 AMENDED FELLOW EMPLOYEE EXCLUSION 5 AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT COVERAGE 13 BROAD FORM INSURED 1 BODILY INJURY REDEFINED 22 EMPLOYEES AS INSUREDS (including employee hired auto) 2 EXTENDED CANCELLATION CONDITION 23 EXTRA EXPENSE - BROADENED COVERAGE 10 GLASS REPAIR - WAIVER OF DEDUCTIBLE 15 HIRED AUTO PHYSICAL DAMAGE (including employee hired auto and loss of use) 6 HIRED AUTO COVERAGE TERRITORY 20 LOAN /LEASE GAP 14 PARKED AUTO COLLISION COVERAGE (WAIVER OF DEDUCTIBLE) 16 PERSONAL EFFECTS COVERAGE 11 PHYSICAL DAMAGE - ADDITIONAL TRANSPORTATION EXPENSE COVERAGE 8 RENTAL REIMBURSEMENT 9 SUPPLEMENTARY PAYMENTS 4 TOWING AND LABOR 7 TWO OR MORE DEDUCTIBLES 17 UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS 18 WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US 20 SECTION II - LIABILITY COVERAGE is amended as follows: 1. BROAD FORM INSURED SECTION II - LIABILITY COVERAGE, paragraph A.I. - WHO IS AN INSURED is amended to include thefollowing as an insured: d. Any legally incorporated entity of which you own more than 50 percent of the voting stock during the policy period. However, "insured" does not include any organization that: (1) Is a partnership orjoint venture; or (2) Is an insured under any other automobile policy; or (3) Has exhausted its Limit of Insurance under any other automobile policy. Paragraph d. (2) of this provision does not apply to a policy written to apply specifically in excess of this policy. e. Any organization you newly acquire or form, other than a partnership or joint venture, of which you own more than 50 percent of the voting stock. This automatic coverage is afforded only for 180 days from the date of acquisition or formation. However, coverage under this provision does not apply: (1) If there is similar insurance or a self- insured retention plan available to that organization; 0 2013 Liberty Mutual insurance CA 88 10 01 13 Includes copyrighted material of Insurance services Office, Inc., with its permission. Page 1 of 7 (2) If the Limits of Insurance of any other insurance policy have been exhausted; or (3) To "bodily injury" or "property damage" that occurred before you acquired or formed the organization. 2. EMPLOYEES AS INSUREDS SECTION II - LIABILITY COVERAGE, paragraph A.1. - WHO IS AN INSURED is amended to include the following as an insured: f. Any "employee" of yours while using a covered "auto" you do not own, hire or borrow, but only for acts within the scope of their employment by you. Insurance provided by this endorse- ment is excess over any other insurance available to any "employee ". g. An "employee" of yours while operating an "auto" hired or borrowed under a written contract or agreement in that "employee's" name, with your permission, while performing duties re- lated to the conduct of your business and within the scope of their employment. Insurance provided by this endorsement is excess over any other insurance available to the "employee ". 3. ADDITIONAL INSURED BY CONTRACT, AGREEMENT OR PERMIT SECTION II - LIABILITY COVERAGE, paragraph A.1. - WHO IS AN INSURED is amended to include the following as an insured: h. Any person or organization with respect to the operation, maintenance or use of a covered "auto ", provided that you and such person or organization have agreed in a written contract, agreement, or permit Issued to you by governmental or public authority, to add such person, or organization, or governmental or public authority to this policy as an "insured ". However, such person or organization is an "insured ": (1) Only with respect to the operation, maintenance or use of a covered "auto "; (2) Only for "bodily Injury" or "property damage" caused by an "accident" which takes place after you executed the written contract or agreement, or the permit has been issued to you; and (3) Only for the duration of that contract, agreement or permit 4. SUPPLEMENTARY PAYMENTS SECTION II - LIABILITY COVERAGE, Coverage Extensions, 2.a. Supplementary Payments, para- graphs (2) and (4) are replaced by the following: (2) Up to $3,000 for cost of bail bonds (including bonds for related traffic violations) required because of an "accident" we cover. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the insured at our request, including actual loss of earn- ings up to $500 a day because of time off from work. 5. AMENDED FELLOW EMPLOYEE EXCLUSION In those jurisdictions where, by law, fellow employees are not entitled to the protection afforded to the employer by the workers compensation exclusivity rule, or similar protection, the following provision is added: SECTION II - LIABILITY, exclusion B.5. FELLOW EMPLOYEE does not apply if the "bodily injury" results from the use of a covered "auto" you own or hire. SECTION III - PHYSICAL DAMAGE COVERAGE is amended as follows: 6. HIRED AUTO PHYSICAL DAMAGE Paragraph A.4. Coverage Extensions of SECTION III - PHYSICAL DAMAGE COVERAGE, is amended by adding the following: If hired "autos" are covered "autos" for Liability Coverage, and if Comprehensive, Specified Causes of Loss or Collision coverage are provided under the Business Auto Coverage Form for any "auto" you own, then the Physical Damage coverages provided are extended to "autos ": a. You hire, rent or borrow; or ® 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 2 of 7 b. Your "employee" hires or rents under a written contract or agreement in that "employee's" name, but only if the damage occurs while the vehicle is being used in the conduct of your business, subject to the following limit and deductible: A. The most we will pay for "loss" in any one " accident" or "loss" is the smallest of: (1) $50,000; or (2) The actual cash value of the damaged or stolen property as of the time of the "loss "; or (3) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality, minus a deductible. B. The deductible will be equal to the largest deductible applicable to any owned "auto" for that coverage. C. Subject to the limit, deductible and excess provisions described in this provision, we will provide coverage equal to the broadest coverage applicable to any covered "auto" you own. D. Subject to a maximum of $1,000 per "accident ", we will also cover the actual loss of use of the hired "auto" if it results from an "accident ", you are legally liable and the lessor incurs an actual financial loss. E. This coverage extension does not apply to: (1) Any "auto" that is hired, rented or borrowed with a driver; or (2) Any "auto" that is hired, rented or borrowed from your "employee ". For the purposes of this provision, SECTION V - DEFINITIONS is amended by adding the following: "Total loss" means a "loss" in which the cost of repairs plus the salvage value exceeds the actual cash value. 7. TOWINGANDLABOR SECTION III - PHYSICAL DAMAGE COVERAGE, paragraph A.2. Towing, is amended by the addition of the following: We will pay towing and labor costs incurred, up to the limits shown below, each time a covered "auto" classified and rated as a private passenger type, "light truck" or "medium truck" is dis- abled: a. For private passenger type vehicles, we will pay up to $50 per disablement. b. For "light trucks ", we will pay up to $50 per disablement. "Light trucks" are trucks that have a gross vehicle weight (GVW) of 10,000 pounds or less. c. For "medium trucks" , we will pay up to $150 per disablement. "Medium trucks" are trucks that have a gross vehicle weight (GVW) of 10,001 - 20,000 pounds. However, the labor must be performed at the place of disablement. 8. PHYSICAL DAMAGE - ADDITIONAL TRANSPORTATION EXPENSE COVERAGE Paragraph A.4.a., Coverage Extension of SECTION III - PHYSICAL DAMAGE COVERAGE, is amend- ed to provide a limit of $50 per day and a maximum limit of $1,500 ® 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services office. Inc.. with its permission. Page 3 of 7 9. RENTAL REIMBURSEMENT SECTION III - PHYSICAL DAMAGE COVERAGE, A. COVERAGE, is amended by adding the following: a. We will pay up to $75 per day for rental reimbursement expenses incurred by you for the rental of an "auto" because of "accident" or "loss ", to an "auto" for which we also pay a "loss" under Comprehensive, Specified Causes of Loss or Collision Coverages. We will pay only for those expenses incurred after the first 24 hours following the "accident" or "loss" to the covered "auto." b. Rental Reimbursement will be based on the rental of a comparable vehicle, which in many cases may be substantially less than $75 per day, and will only be allowed for the period of time it should take to repair or replace the vehicle with reasonable speed and similar quality, up to a maximum of 30 days. c. We will also pay up to $500 for reasonable and necessary expenses incurred by you to remove and replace your tools and equipment from the covered "auto ". d. This coverage does not apply unless you have a business necessity that other "autos" avail- able for your use and operation cannot fill. e. If "loss" results from the total theft of a covered "auto" of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided under Paragraph 4. Coverage Extension. f. No deductible applies to this coverage. For the purposes of this endorsement provision, materials and equipment do not include "personal effects" as defined in provision 11. 10. EXTRA EXPENSE -BROADENED COVERAGE Under SECTION III - PHYSICAL DAMAGE COVERAGE, A. COVERAGE, we will pay for the expense of returning a stolen covered "auto" to you. The maximum amount we will pay is $1,000. 11. PERSONAL EFFECTS COVERAGE A. SECTION III - PHYSICAL DAMAGE COVERAGE, A. COVERAGE, is amended by adding the following: If you have purchased Comprehensive Coverage on this policy for an "auto" you own and that "auto" is stolen, we will pay, without application of a deductible, up to $600 for "personal effects" stolen with the "auto." The insurance provided under this provision is excess over any other collectible insurance. B. SECTION V - DEFINITIONS is amended by adding the following: For the purposes of this provision, "personal effects" mean tangible property that is worn or carried by an insured." "Personal effects" does not include tools, equipment, jewelry, money or securities. 12. ACCIDENTAL AIRBAG DEPLOYMENT SECTION III - PHYSICAL DAMAGE COVERAGE, B. EXCLUSIONS is amended by adding the follow- ing: If you have purchased Comprehensive or Collision Coverage under this policy, the exclusion for "loss" relating to mechanical breakdown does not apply to the accidental discharge of an airbag. Any insurance we provide shall be excess over any other collectible insurance or reimbursement by manufacturer's warranty. However, we agree to pay any deductible applicable to the other cov- erage or warranty. 13. AUDIO, VISUAL AND DATA ELECTRONIC EQUIPMENT COVERAGE SECTION III - PHYSICAL DAMAGE COVERAGE, B. EXCLUSIONS, exception paragraph a. to exclu- sions 4.c. and 4.d. is deleted and replaced with the following: ® 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services office, Inc., with its permission. Page 4 of 7 Exclusion 4.c. and 4.d. do not apply to: a. Electronic equipment that receives or transmits audio, visual or data signals, whether or not designed solely for the reproduction of sound, if the equipment is permanently installed in the covered "auto" at the time of the "loss" and such equipment is designed to be solely operated by use of the power from the "auto's" electrical system, in or upon the covered "auto" and physical damage coverages are provided for the covered "auto "; or If the "loss" occurs solely to audio, visual or data electronic equipment or accessories used with this equipment, then our obligation to pay for, repair, return or replace damaged or stolen property will be reduced by a $100 deductible. 14. LOAN / LEASE GAP COVERAGE A. Paragraph C., LIMIT OF INSURANCE of SECTION III - PHYSICAL DAMAGE COVERAGE is amended by adding the following: The most we will pay for a "total loss" to a covered "auto" owned by or leased to you in any one "accident" is the greater of the: 1. Balance due under the terms of the loan or lease to which the damaged covered "auto" is subject at the time of the "loss" less the amount of: a. Overdue payments and financial penalties associated with those payments as of the date of the "loss ", b. Financial penalties imposed under a lease due to high mileage, excessive use or ab- normal wear and tear, c. Costs for extended warranties, Credit Life Insurance, Health, Accident or Disability Insurance purchased with the loan or lease, d. Transfer or rollover balances from previous loans or leases, e. Final payment due under a "Balloon Loan ", f. The dollar amount of any unrepaired damage which occurred prior to the "total loss" of a covered "auto ", g. Security deposits not refunded by a lessor, h. All refunds payable or paid to you as a result of the early termination of a lease agreement or as a result of the early termination of any warranty or extended service agreement on a covered "auto ", I. Any amount representing taxes, j. Loan or lease termination fees; or 2. The actual cash value of the damage or stolen property as of the time of the "loss ". An adjustment for depreciation and physical condition will be made in determining the actual cash value at the time of the "loss ". This adjustment is not applicable in Texas. B. ADDITIONAL CONDITIONS This coverage applies only to the original loan for which the covered "auto" that incurred the loss serves as collateral, or lease written on the covered "auto" that incurred the loss. C. SECTION V - DEFINTIONS is changed by adding the following: As used in this endorsement provision, the following definitions apply: "Total loss" means a "loss" in which the cost of repairs plus the salvage value exceeds the actual cash value. A "balloon loan" is one with periodic payments that are insufficient to repay the balance over the term of the loan, thereby requiring a large final payment. ® 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services Office, Ina, with its permission. Page 5 Of 15. GLASS REPAIR - WAIVER OF DEDUCTIBLE Paragraph D. Deductible of SECTION III - PHYSICAL DAMAGE COVERAGE is amended by the addition of the following: No deductible applies to glass damage if the glass is repaired rather than replaced. 16. PARKED AUTO COLLISION COVERAGE (WAIVER OF DEDUCTIBLE) Paragraph D. Deductible of SECTION III - PHYSICAL DAMAGE COVERAGE is amended by the addition of the following: The deductible does not apply to "loss" caused by collision to such covered "auto' of the private passenger type or light weight truck with a gross vehicle weight of 10,000 lbs. or less as defined by the manufacturer as maximum loaded weight the "auto' is designed to carry while it is: a. In the charge of an "insured "; b. Legally parked; and c. Unoccupied. The "loss" must be reported to the police authorities within 24 hours of known damage. The total amount of the damage to the covered "auto' must exceed the deductible shown in the Declarations. This provision does not apply to any "loss" if the covered "auto" is in the charge of any person or organization engaged in the automobile business. 17. TWO OR MORE DEDUCTIBLES Under SECTION 111 PHYSICAL DAMAGE COVERAGE, if two or more company policies or coverage forms apply to the same accident, the following applies to paragraph D. Deductible: a. If the applicable Business Auto deductible is the smaller (or smallest) deductible it will be waived; or b. If the applicable Business Auto deductible is not the smaller (or smallest) deductible it will be reduced by the amount of the smaller (or smallest) deductible; or t" If the loss involves two or more Business Auto coverage forms or policies the smaller (or smallest) deductible will be waived. For the purpose of this endorsement company means any company that is part of the Liberty Mutual Group. SECTION IV - BUSINESS AUTO CONDITIONS is amended as follows: 18. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS SECTION IV- BUSINESS AUTO CONDITIONS, Paragraph B.2. is amended by adding the following: If you unintentionally fail to disclose any hazards, exposures or material facts existing as of the inception date or renewal date of the Business Auto Coverage Form, the coverage afforded by this policy will not be prejudiced. However, you must report the undisclosed hazard of exposure as soon as practicable after its discovery, and we have the right to collect additional premium for any such hazard or exposure. 19. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT, OR LOSS SECTION IV - BUSINESS AUTO CONDITIONS, paragraph A.2.a. is replaced In its entirety by the following: a. In the event of "accident ", claim, "suit" or "loss ", you must promptly notify us when it is known to: 1. You, if you are an individual; 2. A partner, if you are a partnership; 3. Member, if you are a limited liability company; 4. An executive officer or the "employee" designated by the Named Insured to give such notice, if you are a corporation. m 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services Office, Inc., with Its permission. Page 6 Of 7 To the extent possible, notice to us should Include: (1) How, when and where the "accident" or "loss" took place; (2) The "insureds" name and address; and (3) The names and addresses of any injured persons and witnesses. 20. WAIVER OF TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US SECTION IV - BUSINESS AUTO CONDITIONS, paragraph A.5., Transfer of Rights of Recovery Against Others to Us, is amended by the addition of the following: If the person or organization has waived those rights before an "accident" or "loss ", our rights are waived also. 21. HIRED AUTO COVERAGE TERRITORY SECTION IV - BUSINESS AUTO CONDITIONS, paragraph B.7., Policy Period, Coverage Territory, is amended by the addition of the following: f. For "autos" hired 30 days or less, the coverage territory is anywhere in the world, provided that the insured's responsibility to pay for damages is determined in a "suit ", on the merits, in the United States, the territories and possessions of the United States of America, Puerto Rico or Canada or in a settlement we agree to. This extension of coverage does not apply to an "auto" hired, leased, rented or borrowed with a driver. SECTION V - DEFINITIONS is amended as follows: 22. BODILY INJURY REDEFINED Under SECTION V - DEFINTIONS, definition C. is replaced by the following: "Bodily Injury" means physical injury, sickness or disease sustained by a person, Including mental anguish, mental injury, shock, fright or death resulting from any of these at any time. COMMMON POLICY CONDITIONS 23. EXTENDED CANCELLATION CONDITION COMMON POLICY CONDITIONS, paragraph A. - CANCELLATION condition applies except as fol- lows: If we cancel for any reason other than nonpayment of premium, we will mail to the first Named Insured written notice of cancellation at least 60 days before the effective date of cancellation. This provision does not apply in those states which require more than 60 days prior notice of cancella- tion. ® 2013 Liberty Mutual Insurance CA 88 10 01 13 Includes copyrighted material of Insurance Services Office, Inc.. with its permission. Page 7 of 7 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 (Ed. 01 -64) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization Job Description Any person or organization as required by written contract. $576.00 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise slated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 9/3012016 Policy No. SWC1126967 Endorsement No. 0 Insured Post Bros Construction Co. (A Corp) Premium $ 24129 Insurance Company Security National Insurance Company Countersigned by WC 04 03 06 (Ed. 01 -84) AMENDMENT NO. 3 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 3 ( "Third Amendment "), is made and entered into April 12, 2016, by and between the City of Seal Beach, a California charter city ( "City ") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor"), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement "), Amendment No. 1 dated September 14, 2015 ( "First Amendment "), and Amendment No. 2 dated December 14, 2015 ( "Second Amendment ") to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ( "Project "). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor. C. The First Amendment provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. D. The Second Amendment provides for (i) an additional scope of work during Year One of the additional two -year term, and (ii) specifies the compensation to be paid to Contractor for that additional work. E, City and Contactor wish to amend the Agreement a third time to (i) include an additional scope of work during Year One of the additional term, for removal of sand in excess of that covered by the existing Agreement, and (ii) specify the compensation to be paid to Contractor for the additional work in accordance with Contractor's March 14, 2016 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1. 1.2 to read as follows: "1.1.2 Supplemental Scope of Sand Removal Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all additional work during Year One of the additional two -year 1 r " IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be executed and attested by their proper officers thereunto. CITY OF SEAL BEACH . _ !A 1�... .� r '. ' - [type /print name and title] (Please note, two signatures required for corporations under Corp. Code §313, unless corporate documents authorize only one person to sign this Agreement on behalf of the corporation.) 3 T April 19, 2016 Post Earthworks Constructors, Inc. Attn: Chris Post, President 2967 E. Coronado Street Anaheim. CA 92806 RE: Amendment No. 3 to Agreement dated September 10, 2012 between The City of Seal Beach and Post Earthworks Constructors, Inc. Dear Mr. Post: CITY HALL 211 EIGHTH STREET SEAL BEACH, CA 90740 (562) 431 -2527 www.sealbeachca.gov Enclosed is copy of the above referenced Amendment No. 3. We have retained one copy for our files. If you have any questions regarding same, please contact the City Clerk's office at 562- 431 -2527, Ext. 1305. Sincerely, Winnie Bell Part-Time Executive Assistant City Clerk's Office City of Seal Beach wbell(cDsealbeachca.gov 562 - 431 -2527 Ext.1304 Enclosure C Jim Basham David Spitz Post Earthworks Constructors, Inc. 2967 E Coronado St Anaheim Ca 92806 714 - 632 -5290 A lic 777445 REVISED CHANGE ORDER REQUEST March 14, 2016 City of Seal Beach Proiect Address: 211 Eighth St. Seal Beach. Ca 90740 East Beach David Spitz 1. Removal of extra berm material. approximately 75% additional sand for El__ $ 45,000.00 Nino storm prevention. Original Contract Amount: $ 60,000.00 Change Order Amount: $ 45,000.00 Revised Contract Amount: $ 105,000.00 We hereby agree to the above as an additional /reduced project cost(s) to be added /deleted to the original scope of work: AMENDMENT NO. 2 TO THAT CERTAIN AGREEMENT DATED SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. This Amendment No. 2 ( "Second Amendment "), is made and entered into December 14, 2015, by and between the City of Seal Beach, a California charter city ( "City ") and Post Earthworks Constructors, Inc., a California Corporation ( "Contractor"), and is an amendment to the September 10, 2012 Public Works Agreement for 3 -Year Annual Sand Berm Construction and Removal ( "Agreement ") and Amendment No. 1 dated September 14, 2015 ( "First Amendment ") to said Agreement. RECITALS A. City and Contractor are parties to the Agreement, whereby Contractor provides certain services to City for a sand berm construction and removal project ( "Project "). B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two -year terms, contingent upon satisfactory performance of Contractor. C. Amendment No. 1 provides for an additional two -year term to and including September 14, 2017, for an additional amount of $275,366. C. City and Contractor wish to amend the Agreement a second time to (i) include an additional scope of work during Year One of the additional two -year term, and (ii) specify the compensation to be paid to Contractor for the additional work in accordance with Contractor's November 3, 2015 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: Section 1. Section 1, Contractor's Services, of the Agreement is amended to add Subsection 1.1.1 to read as follows: 1.1.1 Additional Scope of Services. Subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all additional work during Year One of the additional two -year term ( "Additional Work ") identified in Contractor's November 3, 2015 proposal, attached hereto as Exhibit H and incorporated herein by this reference as though set forth in full. In the event of any material discrepancy or conflict between Exhibit H, on the one hand, and any 1 provision of this Agreement or the Contract Documents, on the other hand, the provisions of this Agreement shall prevail." Section 2. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.2 to read as follows: "3.2 Payment for Additional Work. For performing and completing the Additional Work in accordance with Subsection 1.1.1 and the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $90,274 (ninety thousand two hundred seventy- four dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all Additional Work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization." Section 3. Except as expressly modified or supplemented by this Second Amendment, all other provisions of the Agreement shall remain unaltered and in full force and effect. In the event of a conflict between the provisions of this Second Amendment and the provisions of the Agreement or the First Amendment, the provisions of this Second Amendment shall control. 2 IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed and attested by their proper officer's thereunto. CITY OF SEAL BEACH POST EAR HWORKS CONST I 'Yl ill . Ingram, Cfti Nn ger ATTEST: Robin Roberts, City Clerk APPROV AT F M: Craig A. WeVCityAttorne y Chris Post, President [type /print name and title] (Please note, two signatures required for corporations under Corp. Code §313, unless corporate documents authorize only one person to sign this Agreement on behalf of the corporation_) 3 ,. 4 �?».x� \ �i: 711A y •O _ 4 } d^ < , x , . 4 " i " b t G t ALL F CITY H 211 EIGHTH STREET � SEAL BEAGWCA 90740' (562)431 - 2527..° .. ` .� www.sealbeachca.gov April 7, 2016 Post Earthworks Constructors, Inc. Attn: Chris Post, President 2967 E. Coronado Street Anaheim, CA 92806 RE: Amendment No. 2 to Agreement dated September 10, 2012 between The City of Seal Beach and Post Earthworks Constructors, Inc. Dear Mr. Post: Enclosed is copy of the above referenced Amendment No. 2. We have retained one copy for our files. If you have any questions regarding same, please contact the City Clerk's office at 562- 431 -2527. Ext. 1305. Sincerely, 4LL C&' _ Winnie Bell Part-Time Executive Assistant City Clerk's Office City of Seal Beach wbelle- sealbeachca.00v 562 -431 -2527 Ext.1304 Enclosure C Jim Basham AMENDMENT NO. I TO THAT CERTAIN AGREEMENT DATED, SEPTEMBER 10, 2012 BETWEEN THE CITY OF SEAL BEACH AND POST EARTHWORKS CONSTRUCTORS, INC. 11 This Amendment No. 1 ("First Amendment"), to the September 10, 20:12 Public Works Agreement for 3-Year Annual Sand Berm Construction and Removal ("Agreement") between the City of Seal Beach, a California charter city ("City") and Post Earthworks Constructors; Inc., a California Corporation ("Contractor') is dated September 14, 2015 and is between City and Contractor. V =193 III f-11 A., City and Contractor are parties to the Agreement, whereby Contractor provid es certain cervices to City for a sand berm construction and removal project ("Project"). 1 B. The Agreement provides for an initial contract term of 36 months for the total amount of $370,366, and further provides that the City may elect to exercise an extension to renew the Agreement for two additional two-year terms, contingent upon satisfactory performance of Contractor. C. City and Contractor wish to amend -the Agreement to (i) extend; its term for one additional two-year term, and (ii) specify the compensation to be paid to Contractor for the two-year extension in accordance with Contractor's August 7, 2012 proposal, as provided herein. AMENDMENT NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the Parties agree to amend the Agreement as follows: . Section 1. Section 2 of the Agreement is amended to read as follows: "2. Effective Date. This Agreement, originally effective as of September 10, 2012 (the "Effective Date"), for 36 months, shall remain in full force and effect for an additional two years, from September 14, 2015 through and including September 14, i 2017, unless extended or sooner terminated as provided in the Agreement." Section 2. Section 3, Payment, of the Agreement is hereby amended to add Subsection 3.1 to read as follows: "3.1 Payment for Two-Year Extension. For performing and completing the Work for the additional two-year term for the time period extending from September 14, 2015 through and including September 14, 2017, in accordance with the Contract Documents, City shall pay Contractor, in full compensation therefor, the total amount of $275,366 (two hundred seventy- five thousand three hundred sixty-six dollars), subject to any additions and deletions pursuant to the terms of the Contract Documents, in accordance with the following breakdown: Year One Extension - $180,366.00 (backpass) Year Two Extension - $ 95,000.00 (non backpass) Total - $275,366.00 Said sum shall constitute payment in full for all work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or: incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. The City Manger may authorize extra work to fund unforeseen conditions up to the amount approved at the time of award by the City Council. Payment for additional work in excess of this amount requires prior City Council authorization." Section 3. Except as expressly modified or supplemented by this First Amendment, all other provisions of the Agreement shall remain unaltered and in full force and effect. In the event of a conflict between the provisions of this First Amendment and the provisions of the Agreement the provisions of this First Amendment shall control. IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed and attested by their proper officers thereunto. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be executed and attested by their proper officers thereunto. U. A&Ixiyx 1-19A149F (0) Ingram , Crit-y Mon ger ATTEST: - 1 11 Tina Knapp, Actimg CiN Clerk APPR. fit' .E G O FORM: Craig A. Steele, City Attorney CHRIS C. POST President [typelprint name and title] (Please note, two signatures required for corporations ons tinder Corp. Code §313, unless corporate documents authorize only one person to sign this Agreement; on .behalf of the corporation) 0 PUBLIC WORKS AGREEMENT FOR 3 -YEAR ANNUAL SAND BERM CONSTRUCTION AND REMOVAL between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 9 Post Earthworks Constructors, Inc. 2967 E. Coronado Street Anaheim, CA 92806 (714) 632 -5290 (714) 632 -9767 - FAX THIS AGREEMENT is made as of September 10, 2012, by and between the City of Seal Beach, a California charter city ( "City "), and Post Earthworks Constructors, Inc., a General Contractor (`Contractor "). 0 • RECITALS A. WHEREAS, the City Council has approved the plans and specifications for the J_ Year Annual Sand Berm Construction and Removal ( "Project ") with respect to design criteria; and B. WHEREAS, Contractor has submitted a bid to City for the Project dated August 7, 2012 in the amount of $370,366 ("Accepted Proposal" hereinafter). The Accepted Proposal is attached hereto as Exhibit G and contains, among other things, provisions defining the Project scope. NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: AGREEMENT 1. Contractor's Services. 1.1 Scope and Level of Services. For and in consideration of the mutual promises set forth herein, and subject to the terms and conditions set forth in this Agreement. Contractor shall perform and complete in good and workmanlike manner all work ( "Work ") required by this Agreement and the documents listed in Subsection 1.2 for the Project. 1.2 Contract Documents. The "Contract Documents" that comprise the agreement between the City and the Contractor are the: Notice Inviting Bids, Instructions to Bidders, Accepted Proposal, Non - Collusion Affidavit, Bid Schedule(s), List of Subcontractors, Contractor's Industrial Safety Record, Contractor's Qualification Statement, Bid Security Forms for Check or Bond, Specifications, General and Special Provisions and documents referenced therein, all addenda as prepared prior to the date of bid opening setting forth any modifications or interpretations of any of said documents, this Agreement, Exhibits attached to this Agreement, including but not limited to the Performance Bond (Exhibit A), Payment Bond (Exhibit B), Workers' Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D), Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws (Exhibit E), Labor Law Requirements (Exhibit F), Accepted Proposal (Exhibit G) and any and all supplemental agreements executed amending or extending the Work contemplated and that may be required to complete the Work in a substantial and acceptable manner. These Contract Documents are hereby incorporated into this Agreement. 1.3 The Work shall be performed in accordance with the Plans, Specifications and other Contract Documents. Contractor shall furnish at its own expense all labor, materials, equipment and services necessary therefor, except such labor, materials, equipment and services as are specified in the Contract Documents to be furnished by City. 1.4 In the event of any material discrepancy between the express provisions of this Agreement and the provisions of the other Contract Documents, the provisions of this Agreement shall prevail. 0 • 2. Effective Date. This Agreement is effective as of September 10, 2012 (the "Effective Date "), and shall remain in full force and effect until Contractor has rendered the services required by this Agreement. 3. Payment. For performing and completing the Work in accordance with the Contract Documents, City shall pay Contractor, in full compensation therefor, the amount of $370,366, subject to any additions and deletions pursuant to the terms of the Contract Documents. Said sum shall constitute payment in full for all work performed hereunder, including, without limitation, all labor, materials, equipment.. tools and services used or incorporated in the Work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the Work as specified in the Contract Documents. City shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. 4. Contractor's Personnel. 4.1 All Work shall be performed by Contractor or under Contractor's direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by state and local law and by the Notice Inviting Bids /Instructions to Bidders to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. 4.2 Contractor shall be responsible for payment of all employees' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security. Contractor shall fully comply with the workers' compensation law regarding Contractor and Contractor's employees. 4.3 Contractor shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of city officials, from any and all liabilities, damages, claims, costs and expenses of any nature to the extent arising from Contractor's alleged violations of personnel practices. 4.4 Contractor is, and shall at all times remain as to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor's employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner, represent that it or any of its officers, agents, or employees are in any manner employees of City. Contractor shall pay all required taxes on amounts paid to Contractor under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the work performed pursuant to this Agreement. 4.5 City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor's failure to promptly pay to City any reimbursement or indemnification arising under this Section 4. 5. Indemnification. 5.1 Contractor's Duty. Contractor shall defend, indemnify, and hold the City, its elected officials, officers, employees, volunteers, agents, and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees ") free and harmless from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, bid protests, stop notices, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim," collectively, "Claims "), in any manner arising out of or incident to the performance of the Agreement, including without limitation, the payment of all consequential damages and attorneys' fees and other related costs and expenses. Further, Contractor shall appoint competent defense counsel, at Contractor's own cost, expense and risk, to defend any and all such suits, actions or other legal proceedings of every kind arising out of or incident to the performance of the Agreement that may be brought or instituted against Indemnitees. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or the other Indemnitees in any such suit, action, or other legal proceeding arising out of or incident to the performance of the Agreement. Contractor shall reimburse the City and the other Indemnitees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Contractor or Indemnitees. This indemnity shall apply to all Claims and liability regardless of whether any insurance policies are applicable. 5.2 Bid Protests. In addition to its obligations pursuant to Section 5.1, Contractor shall reimburse the City for all attorneys' fees and costs incurred by City in connection with, arising out of or incident to any bid protest. 5.3 City's Sole Negligence. Nothing in Section 5.1 shall be construed to require Contractor to indemnify Indemnitees for that portion of any Claim to the extent arising from the sole negligence or willful misconduct of the Indemnitees. 5.4 Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Contractor because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. 5.5 Waiver of Right of Subrogation. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses, and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor. 5.6 Survival. The provisions of this Section 5 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against a Contractor shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. 6. Insurance. 6.1 Liability Insurance. Contractor shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the services hereunder by Contractor, and its agents, representatives, employees and subcontractors. The policy limits set forth below do not act as a limitation upon the amount of indemnification to be provided by Contractor. Contractor shall complete and execute the following documents attached as Exhibits hereto and incorporated herein by this reference: General Liability. Liability. 6.1.1 Exhibit D -1: Additional Insured Endorsement - Commercial 6.1.2 Exhibit D -2: Additional Insured Endorsement - Automobile 6.1.3 Exhibit D -3: Additional Insured Endorsement. 6.2 Minimum Scope of Insurance. Unless otherwise approved by City. coverage shall be at least as broad as: 6.2.1 Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 6.2.2 Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 6.2.3 Insurance Services Office form number CG 20 10 11 85 (Ed. 11/85) covering Additional Insured— Owners, Lessees or Contactors (Form B). 6.2.4 Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 6.2.5 Professional Liability insurance. Unless the City waives in the requirement for professional liability insurance, Contractor shall provide to City the standard form issued by the carrier. 6.3 Minimum Limits of Insurance. Contractor shall maintain limits no less than: 6.3.1 General Liability: $2,000,000 per occurrence and in the aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. 6.3.2 Automobile Liability: $2,000,000 per occurrence for bodily injury and property damage. 0 • 6.3.3 Employer's Liability: $1,000,000 per occurrence and in the aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount required by law 6.4 Deductibles and Self- Insured Retentions. Contractor shall inform City of any deductibles or self - insured retentions except with respect to any professional liability insurance. 6.5 Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 6.5.1 City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials which are not also limitations applicable to the named insured. 6.5.2 For any claims related to this Agreement, Contractors insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of City officials. Any insurance or self - insurance maintained by City, their officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of City officials shall be excess of Contractor's insurance and shall not contribute with it. 6.5.3 Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 6.5.4 Each insurance policy required by this Section 6 shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days prior written notice by first class mail has been given to City. 6.5.5 Each insurance policy, except for any professional liability policy, required by this Section 6 shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city or agency officials. 6.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VIII unless waived in writing by City's Risk Manager. 6.7 Verification of Coverage. All insurance coverage's shall be confirmed by execution of endorsements on forms approved by the City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by City before services commence. As an alternative to City forms, 0 • Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. 7. Liquidated Damages. Should the Contractor fail to complete the project, or any part thereof, in the time agreed upon in the Contract, the Contractor shall reimburse the City for the additional expense and damage for each calendar day that the Contract remains uncompleted after the Contract completion date. It is agreed that the amount of such additional expense and damage incurred by reason of failure to complete the Contract is the per diem rate of $750 per calendar day. Such amount is hereby agreed upon as liquidated damages for the loss to the City resulting from the failure of the Contractor to complete the project within the allotted time and to the value of the operation of the works dependent thereon. It is expressly understood and agreed that this amount is a reasonable amount and is established in lieu of damages that are incapable of calculation at the inception hereof: and this amount is not to be considered in the nature of a penalty. The City shall have the right to deduct such damages from any amount due, or that may become due to the Contractor, or the amount of such damages shall be due and collectible from the Contractor or the Contractor's Surety. Progress payments made after the scheduled completion date shall not constitute a waiver of liquidated damages. S. Suspension. City may, in writing, order Contractor to suspend all or any part of the Contractor's Services for the convenience of City or for work stoppages beyond the control of City or Contractor. A suspension of the Services does not void this Agreement. 9. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Contractor's and City's regular business hours or by facsimile before or during Contractor's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this Section. All notices shall be addressed as follows: If to City: City Clerk City of Seal Beach 211 -8th Street Seal Beach, California 90740 Telephone: (562) 431 -2527 Fax: (562) 493 -9857 With a copy to: Public Works Director City of Seal Beach 211 -8th Street Seal Beach, California 90740 If to Contractor: Post Earthworks Constructors, Inc. 2967 E. Coronado Street Anaheim, CA 92806 0 • Telephone: 714 - 632 -5290 Fax: 714- 632 -7967 Attn: Chris Post. President 10. Non-Assignability; Subcontracting. Contractor shall not assign, transfer, or subcontract any interest in this Agreement or the performance of any of Contractor's obligations hereunder. Any attempt by Contractor to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect. 11. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs the Services. 12. Non - Waiver of Terms. Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. 13. Attorneys' Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including all attorneys' fees incurred in connection therewith. 14. Construction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. 15. Entire Agreement. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. 16. Severability. The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. 0 CITY OF SEAL BEACH By Jill . Ingram, City an er Attest: By: / Linda Devine, City Clerk Approved as to Form: By: uinn M. Barrow, City Attorney CONTRACT By: Name: `TR Title: EXHIBIT A FAITHFUL PERFORMANCE BOND EXHIBIT B PAYMENT BOND EXHIBIT C WORKERS' COMPENSATION INSURANCE CERTIFICATE EXHIBIT D -1 ADDITIONAL INSURED ENDORSEMENT (COMMERCIAL GENERAL LIABILITY) EXHIBIT D -2 ADDITIONAL INSURED ENDORSEMENT (AUTOMOBILE LIABILITY) EXHIBIT D -3 ADDITIONAL INSURED ENDORSEMENT EXHIBIT E ACKNOWLEDGMENT OF PENAL AND CIVIL PENALTIES CONCERNING CONTRACTOR LICENSING LAWS EXHIBIT F LABOR LAW REQUIREMENTS EXHIBIT G ACCEPTED PROPOSAL (NOTE: Exhibits will not be included with the contract at the time of award. The Contractor shall have 10 working days to submit all exhibits to the City after the award of contract. Failure to do so will result in voiding of the contract. The City will then have the right to cash the bid bond for the project and re- advertise for construction or award to the next lowest responsive bidder.) CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of 67/ —,r c Q CIVIL CODE § 7789 On201Am�t -5`t 201 2-before me, lk ✓: S�c�n�er JcG . Sch , �cr4ry P Lk , Date r Here Insetl -Name antl Title of t e Officer personally appeared C(fn s 4 5 1 t Namels) of Signers) who proved to me on the basis of satisfactory evidence to be the person s)'whose namekl is/are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in KRISTOPHER JOHN OLSON his /her/their authorized capacity(ies), and that by Commission # 1961438 Z his /her /their signature(s) on the instrument the `a -a Notary Public - California person(s), or the entity upon behalf of which the i Orange county person(s) acted, executed the instrument. My Comm. Expires Nov 21, 2015 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS myhand and official seal. Signature: / 4� Place Notary Seal Above IT Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document , I , Title or Type of Document: ru lyli k/orrS ii Y Document Date:051.2q /Zci2 l5eir Gown -Frwcf Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signers) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER. Signer's Name: Pages: Cl ❑ Corporate Officer — Title(s): ❑ Individual • Partner — ❑ Limited ❑ General • Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER 2010 National Notary Association - NationalNotaryorg - 1 -8005 NOTARY (1- 800 - 876-6821) Item #5907 AN AGREEMENT FOR 3 Year Annual Winter Sand Berm Construction and Removal between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 U Post Earthwork Constructors 2967 E. Coronado Street Anaheim, CA 92806 THIS AGREEMENT is made and entered into this 28 day of September, 2009, by and between the City of Seal Beach, a California charter city ( "City "), and Post Earthwork Constructors, a corporation ( "Contractor "). RECITALS A. WHEREAS, the City Council has approved the plans and specifications for the 3 Year Annual Winter Sand Berm Construction and Removal ( "Project "); 2009. B. WHEREAS, Contractor has submitted a bid to City for the Project dated September 8, NOW, THEREFORE, in consideration of performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties hereto agree as follows: AGREEMENT Contractor's Services. Scope and Level of Services. For and in consideration of the mutual promises set forth herein, and subject to the terms and conditions set forth in this Agreement, Contractor shall perform and complete in good and workmanlike manner all work ( "Work ") required by this Agreement and the documents listed in Subsection 1.2 for the Project. Contract Documents. The "Contract Documents" that comprise the agreement between the City and the Contractor are the: Notice Inviting Bids, Instructions to Bidders, Accepted Proposal, Non - Collusion Affidavit, Bid Schedule(s), List of Subcontractors, Contractor's Industrial Safety Record, Contractor's Qualification Statement, Bid Security Forms for Check or Bond, Specifications, General and Special Provisions and documents referenced therein, all addenda as prepared prior to the date of bid opening setting forth any modifications or interpretations of any of said documents, this Agreement, Exhibits attached to this Agreement, including but not limited to the Performance Bond (Exhibit A), Payment Bond (Exhibit B), Worker's Compensation Insurance Certificate (Exhibit C), Insurance Endorsements (Exhibit D), Acknowledgment of Penal and Civil Penalties Concerning Contractor Licensing Laws (Exhibit E) and Labor Law Requirements (Exhibit F) and any and all supplemental agreements executed amending or extending the work contemplated and that may be required to complete the work in a substantial and acceptable manner. These Contract Documents are hereby incorporated into this Agreement. The Work shall be performed in accordance with the Plans, Specifications and other Contract Documents. Contractor shall furnish at its own expense all labor, materials, equipment and services necessary therefore, except such labor, materials, equipment and services as are specified in the Contract Documents to be furnished by Owner. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of the other Contract Documents, the provisions of this Agreement shall Prevail. Effective Date. This Agreement is effective as of September 28, 2009 (the "Effective Date "), and shall remain in full force and effect until Contractor has rendered the services required by this Agreement. Payment. For performing and completing the work in accordance with the Contract Documents, Owner shall pay Contractor, in full compensation therefor, the contract sum set forth in the Bidding Schedule. Said sum shall constitute payment in full for all work performed hereunder, including, without limitation, all labor, materials, equipment, tools and services used or incorporated in the work, supervision, administration, overhead, expenses and any and all other things required, furnished or incurred for completion of the work as specified in the Contract Documents. Owner shall make payments to Contractor on account of the contract sum at the time, in the manner, and upon the conditions specified in the Contract Documents. Contractor's Personnel. All Work shall be performed by Contractor or under Contractor's direct supervision, and all personnel shall possess the qualifications, permits, and licenses required by State and local law and by the Notice Inviting Bids/Instructions to Bidders to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. Contractor shall be responsible for payment of all employees' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security. Contractor shall fully comply with the workers' compensation law regarding Contractor and Contractor's employees. Contractor shall indemnify and hold harmless City and its elected officials, officers and employees, servants, designated volunteers, and agents serving as independent contractors in the role of city officials, from any and all liabilities, damages, claims, costs and expenses of any nature to the extent arising from Contractor's alleged violations of personnel practices. Contractor is, and shall at all times remain as to City, a wholly independent contractor. Contractor shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act as an agent of City. Neither City nor any of its agents shall have control over the conduct of Contractor or any of Contractor's employees, except as set forth in this Agreement. Contractor shall not, at any time, or in any manner, represent that it or any of its officers, agents, or employees are in any manner employees of City. Contractor shall pay all required taxes on amounts paid to Contractor under this Agreement, and indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the work performed pursuant to this Agreement. City shall have the right to offset against the amount of any fees due to Contractor under this Agreement any amount due to City from Contractor as a result of Contractor's failure to promptly pay to City any reimbursement or indemnification arising under this Section 4. Indemnification. Contractor's Dutv. Contractor shall indemnify and hold the City, its elected officials, officers, employees, volunteers, agents, and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees ") free and harmless from any and all claims, damages, penalties, obligations, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including without limitation wrongful death, bid protests, and stop notice actions, in any manner arising out of or incident to the performance of the Agreement, including without limitation the payment of all consequential damages and attorneys fees and other related costs and expenses. Further, Contractor shall appoint competent defense counsel, at Contractor's own cost, expense and risk, to defend any and all such suits, actions or other legal proceedings of every kind arising out of or incident to the performance of the Agreement that may be brought or instituted against Indemnitees. Contractor shall pay and satisfy any judgment, award or decree that may be rendered against City or the other Indemnitees in any such suit, action, or other legal proceeding arising out of or incident to the performance of the Agreement. Contractor shall reimburse the City and the other Indemnitees, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Contractor's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City or the other Indemnitees. 0 • Nonwaiver of Rights. Indemnitees do not, and shall not, waive any rights that they may possess against Contractor because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. Waiver of Right of Subrogation. Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation against the Indemnitees, while acting within the scope of their duties, from all claims, losses, and liabilities arising out of or incident to activities or operations performed by or on behalf of the Indemnitor. Survival. The provisions of this Section 5 shall survive the termination of the Agreement and are in addition to any other rights or remedies that Indemnitees may have under the law. Payment is not required as a condition precedent to an Indemnitee's right to recover under this indemnity provision, and an entry of judgment against an Contractor shall be conclusive in favor of the Indemnitee's right to recover under this indemnity provision. Insurance. Liability Insurance. Contractor shall procure and maintain in full force and effect for the duration of this Agreement insurance against claims for injuries to persons or damages to property and professional negligence which may arise from or in connection with the performance of the services hereunder by Contractor, and its agents, representatives, employees and subconsultants. Contractor shall complete and execute the following documents attached as Exhibits hereto and incorporated herein by this reference: Exhibit D -1: Additional Insured Endorsement - Commercial General Liability Exhibit D -2: Additional Insured Endorsement - Automobile Liability Exhibit D -3: Additional Insured Endorsement Minimum Scone of Insurance. Unless otherwise approved by City, coverage shall be at least as broad as defined below: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). Worker's Compensation insurance as required by the State of California and Employer's Liability Insurance. Professional Liability insurance. Contractor shall provide to City the standard form issued by the carrier. Minimum Limits of Insurance. Contractor shall maintain limits no less than as defined below: General Liability: $2,000,000 per occurrence and in the aggregate for bodily injury, personal injury and property damage. Commercial General Liability Insurance or other form with a general aggregate limit shall apply separately to this Agreement or the general limit shall be twice the required occurrence limit. Automobile Liability: $2,000,000 per accident for bodily injury and property damage. Employer's Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease and Workers' Compensation Insurance in the amount required by law. Deductibles and Self- Insured Retentions. Contractor shall inform City of any deductibles or self - insured retentions except with respect to professional liability insurance. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials, are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor; products and completed operations of Contractor; premises owned, occupied or used by Contractor, or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no limitations on the scope of protection afforded to City, its officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials which are not also limitations applicable to the named insured. For any claims related to this Agreement, Contractor's insurance coverage shall be primary insurance as respects City, its officers, officials, employees, designated volunteers and agents serving as independent contractors in the role of city or agency officials. Any insurance or self - insurance maintained by City, their officers, officials, employees, designated volunteers or agents serving as independent contractors in the role of city or agency officials shall be excess of Contractor's insurance and shall not contribute with it. Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled or materially modified except after 30 days prior written notice by registered first class mail has been given to City. Each insurance policy, except for the professional liability policy, required by this clause shall expressly waive the insurer's right of subrogation against City and its elected officials, officers, employees, servants, attorneys, designated volunteers, and agents serving as independent contractors in the role of city or agency officials. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VB unless waived in writing by City's Risk Manager. Verification of Coverage. All insurance coverages shall be confirmed by execution of endorsements on forms approved by the City. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received and approved by City before services commence. As an alternative to City forms, Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. Liquidated Damages. Should the Contractor fail to complete the project, or any part thereof, in the time agreed upon in the Contract, the Contractor shall reimburse the Owner for the additional expense and damage for each calendar day that the Contract remains uncompleted after the Contract completion date. It is agreed that the amount of such additional expense and damage incurred by reason of failure to complete the Contract is the per diem rate $750 per working day. Such amount is hereby agreed upon as liquidated damages for the loss to the Owner resulting from the failure of the Contractor to complete the project within the allotted time and to the value of the operation of the works dependent thereon. It is expressly understood and agreed that this amount is a reasonable amount and is established in lieu of damages that are incapable of calculation at the inception hereof; and this amount is not to be considered in the nature of a penalty. The Owner shall have the right to deduct such damages from any amount due, or that may become due to the Contractor, or the amount of such damages shall be due and collectible from the Contractor or the Contractor's Surety. Progress payments made after the scheduled completion date shall not constitute a waiver of liquidated damages. Suspension. City may, in writing, order Contractor to suspend all or any part of the Contractor's Services for the convenience of City or for work stoppages beyond the control of City or Contractor. A suspension of the Services does not void this Agreement. Notices. Any notices, bills, invoices, or reports authorized or required by this Agreement shall be in writing and shall be deemed received on (a) the day of delivery if delivered by hand or overnight courier service during Contractor's and City's regular business hours or by facsimile before or during Contractor's regular business hours; or (b) on the third business day following deposit in the United States mail, postage prepaid, to the addresses heretofore set forth in the Agreement, or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this Section. All notices shall be addressed as follows: If to City: City Clerk City of Seal Beach 211 8th Street Seal Beach, California 90740 Telephone: (562) 431 -2527 Fax: (562) 493 -9857 With a copy to: Public Works Director City of Seal Beach 211 8th Street Seal Beach, California 90740 If to Contractor: Chris Post, President Post Earthwork Constructors 2967 E. Coronado Street Anaheim, CA 92806 Telephone: 714 - 632 -5290 Fax: 714 - 632 -7967 Non -Assi ng ability: Subcontractine. Contractor shall not assign, transfer, or subcontract any interest in this Agreement or the performance of any of Contractor's obligations hereunder. Any attempt by Contractor to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be null, void and of no effect. Compliance with Laws. Contractor shall comply with all applicable federal, state and local laws, ordinances, codes and regulations in force at the time Contractor performs the Services. Non - Waiver of Terms. Rights and Remedies. Waiver by either party of any one or more of the conditions of performance under this Agreement shall not be a waiver of any other condition of performance under this Agreement. In no event shall the making by City of any payment to Contractor constitute or be construed as a waiver by City of any breach of covenant, or any default which may then exist on the part of Contractor, and the making of any such payment by City shall in no way impair or prejudice any right or remedy available to City with regard to such breach or default. Attorneys' Fees. In the event that either party to this Agreement shall commence any legal action or proceeding to enforce or interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including all attorneys' fees incurred in connection with such enforcement or interpretation. Construction. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California. In the event of any asserted ambiguity in, or dispute regarding the interpretation of any matter herein, the interpretation of this Agreement shall not be resolved by any rules of interpretation providing for interpretation against the party who causes the uncertainty to exist or against the party who drafted the Agreement or who drafted that portion of the Agreement. Entire Agreement. This Agreement, including any other documents incorporated herein by specific reference, represents the entire and integrated agreement between Contractor and City. This Agreement supersedes all prior oral or written negotiations, representations, or agreements. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by the parties which expressly refers to this Agreement. IN WITNESS WHEREOF, the parties, through their respective authorized representatives, have executed this Agreement as of the date first written above. CITY OF SEAL BEACH By: qv =:7) By: City Manager Attest: By: YU ml By: L` da evine, City Clerk Approved as to Form: By:_"--- uinn M. Barr , City Attorney C C OR: ristopher Post Title: President Name: Title: 9 Jurat State of California County of �Jq± Subscribed and sworn to (or affirmed) before me on this .21 � day of s --0'" 2001 by C Hp-t 57rn w s-7 P� Pos-r proved to me on the basis of satisfactory evidence to be the person �who appeared before me. Signature i (Notary seal) It ANDALL LEE GRRAM .Commlaslon If 1763123 i Notary Public • C011tornl0 Orange County �gcnln%ftWAm26.2Dll OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT F- �rfFo,� 3 �t2aur,�✓t,rtnEQ (Title or descnpuon of attached document) 5'AAtD,BEF -M �Rr;�i/4J Ar�r��/•lA Critic or description of attached document continued) Number of Pages -I— Document Date 55'1ezGLj3 9WAV AF os aee+5*artt<,t R�srav� j (Additional information) INSTRUCTIONS FOR COMPLETING THIS FORM The wording of all lurats completed in California after January 1, 2008 mart be in deform as set forth within this Juror. There are no exceptions. If a Jurat to be completed does not follow this form, the notary must correct the verbiage by using a jurat stamp containing the correct wording or attaching a separate juiom form such as flits one which does contain proper wording. In addition, the notary must require an oath or affirmation from the document signer regarding the truthfulness of the contents of the document. The document most be signed AFTER the oath or aJrrmamon. If the document was previously signed it most be re- signed in from of the notary public during the juraf process. State and County information most be the State and County where the document signers) personally appeared before the notary, public. Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the joint process is completed. Print the morels) of document signers) who personally appear at the time of notanzabon. Signature of the notary public most match the signature on file with the office of the county clerk. The notary seal impression must be clear and photographically reproducible, Impression must not cover text or lines. If seal impression smudges, re -seal if a sufficient area permits, otherwise complete a different jurat form. 4 Additional information is not required but could help to ensure this just is not misused or attached to a different documenL le Indicate title or type of attached document, number of pages and date. Securely attach this document to the signed document 2008 Version CAPA v1.9.07 800- 873 -9865 www.NotaryC[asses.com 9 • SECRETARY OF STATE I, BILL JONES, Secretary of State of the State of California, hereby certify: That the attached transcript of % page(s) has been compared with the record on file in this office, of which it purports to be a copy, and that it is full, true and correct. Semstate Farm GE 107 )rev. 9198) IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this day of 90 Secretary oY 3iaie FEB 15 2000 ' ' - OSP 98 13524 �L • • ARTICLES OF INCORPORATION -ILL 10idt S, SEC�c YAg'Y OF STATE OF POST EARTHWORKS CONSTRUCTORS, INC. I The name of this corporation is Post Earthworks Constructors, Inc. II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: Theresa Crawford Tate Crawford & Bangs 1290 E. Center Court Drive Covina, California 91724 IV This corporation is authorized to issue only one class of shares of stock, designated as "common "; and the total number of shares which this corporation is authorized to issue is Five Hundred Thousand (500,000) shares. V The liability of the directors of the Corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. DATED: \ i1•IERESA CRAWFORD TATE, Incorporator 9 0 BYLAWS OF POST EARTHWORKS CONSTRUCTORS, INC. A California Corporation ARTICLE I OFFICES Section 1. PRINCIPAL OFFICES. The board of directors shall fix the location of the principal office of the corporation at any place within or outside the State of California. If the principal executive office is located outside this state, and the corporation has one or more business offices in this state, the board of directors shall fix and designate a principal business office in the State of California. Section 2. OTHER OFFICES. The board of directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business. ARTICLE II MEETINGS OF SHAREHOLDERS Section 1. PLACE OF MEETINGS. Meetings of shareholders shall be held at any place within or outside the State of California designated by the board of directors. In the absence of any such designation, shareholders' meetings shall be held at the principal executive office of the corporation. Section 2. ANNUAL MEETING. The annual meeting of shareholders shall be held during the month of March in each year, the exact date and time of which shall be designated by the board of directors. At each meeting, directors shall be elected, and any other proper business maybe transacted. In no event shall the date of the annual meeting be more than fifteen (15) months since the last annual meeting of the shareholders. Section 3. SPECIAL MEETING. A special meeting of the shareholders may be called at any time bythe board of directors, or by the chairman of the board, or by the president, or by one or more shareholders holding shares in the aggregate entitled to cast not less than ten percent (10 %) of the votes at that meeting. If a special meeting is called by any person or persons other than the board of directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president, any vice president, or the secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the shareholders entitled to vote, in accordance with the provisions of Sections 4 and 5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than thirty -five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the rylu�AiroN..MI 0 request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 3 shall be construed as limiting, fixing or affecting the time when a meeting of the shareholders called by action of the board of directors may be held. Section 4. NOTICE OF SHAREHOLDERS' MEETINGS. All notices of meetings of shareholders shall be sent or otherwise given in accordance with Section 5 ofthisArticle II not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, or (ii) in the case of the annual meeting, those matters which the board of directors, atthe time of giving the notice, intends to presentfor action bythe shareholders. The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees whom, at the time of the notice, management intends to presentfor election. If action is proposed to be taken at any meeting for approval of (i) a contract ortransaction in which a director has a direct or indirect financial interest, pursuant to Section 310 of the Corporations Code of California, (ii) an amendment of the articles of incorporation, pursuant to Section 902 ofthatCode, (iii) a reorganization of the corporation, pursuantto Section 1201 of that Code, (iv) a voluntary dissolution of the corporation, pursuantto Section 1900 of that Code, or (v) a distribution in dissolution otherthan in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of that Code, the notice shall also state the general nature of that proposal. Section 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of shareholders shall be given either personally or by first -class mail or telegraphic or other written communication, charges prepaid, addressed to the shareholder at the address of that shareholder appearing on the books of the corporation or given by the shareholder to the corporation forthe purpose of notice. If no such address appears on the corporation's books or is given, notice shall be deemed to have been given if sent to that shareholder by first -class mail or telegraphic or other written communication to the corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication. If any notice addressed to a shareholder at the address of that shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the shareholder at that address, all future notices or reports shall be deemed to have been dulygiven without further mailing if these shall be available to the shareholder on written demand of the shareholder at the principal executive office of the corporation fora period of one yearfrom the date of the giving of the notice. An affidavit of the mailing or other means of giving any notice of any shareholders' meeting shall be executed by the secretary, assistant secretary, or any transfer agent of the corporation giving the notice, and shall be filed and maintained in the minute book of the corporation. Section 6. QUORUM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting of shareholders shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (otherthan adjournment) is approved by at least a majority of the shares required to constitute a quorum. Section 7. ADJOURNED MEETING; NOTICE. Any shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented atthe meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at that meeting, except as provided in Section 6 of this Article 11. When any meeting of shareholders, either annual or special, is adjourned to anothertime or place, notice need not be given of the adjourned meeting if the time and place are announced at a meeting at which the adjournment is taken, unless a new record date forthe adjourned meeting is fixed, or unless the adjournment is for more than forty -five (45) days from the date set for the original meeting, in which case the board of directors shall set a new record date. Notice of any such adjourned meeting shall be given to each shareholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. Section 8. VOTING. The shareholders entitled to vote at any meeting of shareholders shall be determined in accordance with the provisions of Section 11 of this Article 11, subject to the provisions of Sections 702 to 704, inclusive, of the Corporations Code of California (relating to voting shares held by fiduciary, in the name of a corporation, or in joint ownership). The shareholders' vote may be by voice vote or by ballot; provided, however, that any election for directors must be by ballot if demanded by any shareholder before the voting has begun. On any matter other than elections of directors, any shareholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the shareholder fails to specify the number of shares which the shareholder is voting affirmatively, it will be conclusively presumed that the shareholder's approving vote is with respect to all shares that the shareholder is entitled to vote. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on any matter (other than the election of directors) shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by California General Corporation Law or by the articles of incorporation. At a shareholders' meeting at which directors are to be elected, no shareholder shall be entitled to cumulate votes (i.e., castforany one or more candidates a numberof votes greaterthan the number of shareholder's shares) unlessthe candidates' names have been placed in nomination priorto commencement of the voting and a shareholder has given notice priorto commencement of the voting of the shareholder's intention to cumulate votes. If any shareholder has given such a notice, then every shareholder entitled to vote may cumulate votes for candidates in nomination and give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which that shareholder's shares are entitled or distribute the shareholder's votes on the same principle among any or all of the candidates as the shareholder thinks fit. The candidates receiving the highest number of votes, up to the number of directors to be elected, shall be elected. Section 9. WAIVER OF NOTICE OR CONSENT BY ABSENT SHAREHOLDERS. The transactions of any meeting of shareholders either annual or special, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, who was not present in person or by proxy, signs a written waiver of notice or a consent to a holding of the meeting, or an approval of the minutes. The waiver of notice or consent need not specify either the business to be transacted or the purpose of any annual or special meeting of shareholders, except that if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of Section 4 of this Article ll, the waiver of notice or consent shall state the general nature of the proposal. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, exceptwhen the person objects, atthe beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the meeting. Section 10. SHAREHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which maybe taken at any annual or special meeting of the shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes thatwould be necessary to authorize ortake that action at a meeting at which all shares entitled to vote on that action were present and voted. In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors; provided, however, that a director maybe elected at anytime to fill a vacancy on the board of directors that has not been filled by the directors, by the written consent of the holder of a majority of the outstanding shares entitled to vote for the election of directors. All such consents shall be filed with the secretary of the corporation and shall be maintained in the corporate records. Any shareholder giving a written consent, or the shareholder's proxy holders, ora transferee ofthe shares or a personal representative of the shareholder or their respective proxy holders, may revoke the consent by a writing received by the secretary of the corporation before written consent of the number of shares required to authorize the proposed action have been filed with the secretary. If the consents of all shareholders entitled to vote have not been solicited in writing, and if the unanimous written consent of all such shareholders shall not have been received, the secretary shall give prompt notice of the corporate action approved by the shareholders without a meeting. This notice shall be given in the manner specified in Section 5 of this Article II. In the case of approval 1x:4113 o p... J 0 of (i) contracts or transactions in which a director has a director indirect financial interest, pursuant to Section 310 of the Corporations Code of California, (ii) indemnification of agents of the corporation, pursuant to Section 317 of that Code, (iii) a reorganization of the corporation, pursuant to Section 1201 of that Code, and (iv) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to Section 2007 of that Code, the notice shall be given at least ten (10) days before the consummation of any action authorized by that approval. Section 11. RECORD DATE FOR SHAREHOLDER NOTICE, VOTING, AND GIVING CONSENTS. For purposes of determining the shareholders entitled to notice of any meeting or to vote or entitled to give consent to corporate action without a meeting, the board of directors may fix, in accordance, a record date, which shall not be more than sixty (60) days nor less then ten (10) days before the date of any such meeting nor more than sixty (60) days before any such action without a meeting, and in this event only shareholders of record on the date so fixed are entitled to notice and to vote or to give consents, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the California General Corporation Law. If the board of directors does not so fix a record date: (a) The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. (b) The record date for determining shareholders entitled to give consent to corporate action in writing without a meeting, (i) when no prior action by the board has been taken, shall be at the close of business on the day on which the board adopts the resolution relating to that action, or the sixtieth (60th) day before the date of such other action, whichever is later. Section 12. PROXIES. Every person entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the secretary of the corporation. A proxy shall be deemed signed if the shareholder's name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission, or otherwise) by the shareholder or the shareholder's attorney in fact. A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it, before the vote pursuant to that proxy by a writing delivered to the corporation stating that the proxy is revoked, or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy; or (ii) written notice of the death or incapacity of the maker of that proxy is received by the corporation before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid afterthe expiration of eleven (11) months from the date of the proxy, unless otherwise provided in the proxy. The revocability of proxy that states on its face that it is irrevocable shall be governed by the provisions of Sections 705(e) and 705(f) of the Corporations Code of California. nr,u�aua....wi 9 0 Section 13. INSPECTORS OF ELECTION. Before any meeting of shareholders, the board of directors may appoint any persons otherthan nominees for office to act as inspectors of election at the meeting or its adjournment. If no inspectors of election are so appointed, the chairman of the meeting may, and on the requestof any shareholder or a shareholder's proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one (1) or three (3). If inspectors are appointed at a meeting on the request of one or more shareholders or proxies, the holders of a majority of shares ortheir proxies present at the meeting shall determine whether one (1) or three (3) inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, the chairman of the meeting may, and upon the request of any shareholder or a shareholder's proxy shall, appoint a person to fill that vacancy. These inspectors shall: (a) Determine the number of shares outstanding and the voting power of each, the shares represented atthe meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies; (b) Receive votes, ballots, or consents; (c) Hear and determine all challenges and questions in anyway arising in connection with the right to vote; (d) Count and tabulate all votes or consents; (e) Determine when the polls shall close; (f) Determine the result; and (g) Do any other act that may be properto conduct the election or vote with fairness to all shareholders. ARTICLE III DIRECTORS Section 1. POWERS. Subject to the provisions of the California General Corporation Law and any limitations in the articles of incorporation and these bylaws relating to action required to be approved by the shareholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or underthe direction of the board of directors. Without prejudice to these general powers, and subject to the same limitations, the directors shall have the power to: (a) Select and remove all officers, agents, and employees of the corporation; prescribe any powers and duties for them that are consistent with law, with the articles of 9 0 incorporation, and with these bylaws; fix their compensation; and require from them security for faithful service. (b) Change in the principal executive office orthe principal business office in the State of Californiafrom one location to another; causethe corporation to be qualified to do business in any otherstate, territory, dependency, orcountry and conduct business within orwithoutthe State of California; and designate any place within orwithout the State of California for the holding of any shareholders' meeting, or meetings, including annual meetings. (c) Adopt, make, and use a corporate seal; prescribe the forms of certificates of stock; and alter the form of the seal and certificates. (d) Authorize the issuance of shares of stock of the corporation on any lawful terms, in consideration of money paid, labor done, services actually rendered, debts or securities canceled, or tangible or intangible property actually received. (e) Borrow moneyand incur indebtedness on behalf of the corporation, and cause to be executed and delivered for the corporation's purposes, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and securities. Section 2. NUMBER AND QUALIFICATION OF DIRECTORS. The authorized number of directors shall be three (3) until changed by a duly adopted amendment to the articles of incorporation or by an amendmentto this bylaw adopted bythe vote orwritten consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that an amendment reducing the number of directors to a number less than five (5) cannot be adopted if the votes cast against its adoption at a meeting, or the shares not consenting in the case of action by written consent, are equal to more than 16 -2/3% of the outstanding shares entitled to vote. Section 3. ELECTION AND TERM OF OFFICE OF DIRECTORS. Directors shall be elected at each annual meeting of the shareholders to hold office until the next annual meeting. Each director, including a director elected to fill a vacancy, shall hold office until the expiration of the term for which elected and until a successor has been elected and qualified. Section 4. VACANCIES. Vacancies in the board of directors may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director, except that a vacancy created by the removal of a director by the vote or written consent of the shareholders or by court order may be filled only by the vote of a majority of the shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the written consent of the holders of a majority of the outstanding shares entitled to vote. Each director so elected shall hold office until the next annual meeting of the shareholders and until a successor has been elected and qualified. p[vm orfry..Ml A vacancy or vacancies in the board of directors shall be deemed to exist in the event of the death, resignation, or removal of any director, or if the board of directors by resolution declares vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony, or if the authorized number of directors is increased, or if the shareholders fail, at any meeting of shareholders at which any director or directors are elected, to elect the number of directors to be voted for at that meeting. The shareholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors, but any such election by written consent shall require the consent of a majority of the outstanding shares entitled to vote. Any director may resign effective on giving written notice to the chairman of the board, the president, the secretary, or the board of directors, unless the notice specifies a later time for that resignation to become effective. If the resignation of a director is effective at a future time, the board of directors may elect a successor to take office when the resignation becomes effective. No reduction of the authorized number of directors shall have the effect of removing any director before that director's term of office expires. Section 5. PLACE OF MEETINGS AND MEETINGS BY TELEPHONE. Regular meetings of the board of directors may be held at any place within oroutside the State of California that has been designated from time to time by resolution of the board. In the absence of such a designation, regular meetings shall be held at the principal executive office of the corporation. Special meetings of the board shall be held at any place within or outside the State of California that has been designated in the notice of the meeting or, if not stated in the notice or there is no notice, atthe principal executive office of the corporation. Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another, and all such directors shall be deemed to be present in person at the meeting. Section 6. ANNUAL MEETING. Immediately following each annual meeting of shareholders, the board of directors shall hold a regular meeting forthe purpose of organization, anydesired election of officers, and the transaction of other business. Notice of this meeting shall not be required. Section 7. OTHER REGULAR MEETINGS. Other regular meetings of the board of directors shall be held without call at such time as shall from time to time be fixed by the board of directors. Such regular meetings may be held without notice. Unless dispensed with by action of the board, a regular meeting of the board shall be held in the month of September of each year, the exact date and time of which shall be set by the president of the board, or if he fails to do so by the 20th day of such month, by the secretary, any vice president or any two directors. Section 8. SPECIAL MEETINGS. Special meetings of the board of directors for any special purpose or purposes may be called at any time by the chairman of the board or the president or any vice president or the secretary or any two directors. 1. +-m W, Notice of the time and place of special meetings shall be delivered personally or by telephone to each director or sent by first -class mail or telegram, charges prepaid, addressed to each director at that director's address as it is shown on the records of the corporation. In case the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of holding of the meeting. In case the notice is delivered personally, or by telephone or telegram, it shall be delivered personally or by telephone or to the telegraph company at least forty -eight (48) hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose of the meeting nor the place if the meeting is to be held at the principal executive office of the corporation. Section 9. QUORUM. A majority of the authorized number of directors shall constitute a quorum forthe transaction of business, exceptto adjourn as provided in Section 11 of this Article 111. Every actor decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the board of directors, subject to the provisions of Section 310 of the Corporations Code of California ( as to approval of contracts or transactions in which a director has a direct or indirect material financial interest), Section 311 of that Code (as to appointment of committees), and Section 317(e) of that Code (as to indemnification of directors). A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting. Section 10. WAIVER OF NOTICE. The transaction of any meeting of the board of directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting or an approval of the minutes. The waiver of notice or consent need not specify the purpose of the meeting. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Notice of a meeting shall also be deemed given to any directorwho attends the meeting without protesting before or at its commencement, the lack of notice to that director. Section 11. ADJOURNMENT. A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place. Section 12. NOTICE OF ADJOURNMENT. Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned formore than twenty -four hours, in which case notice of the time and place shall be given before the time of the adjourned meeting, in the mannerspecified in Section 8 of this Article 111, to the directors who were not present at the time of the adjournment. Section13. ACTION WITHOUT MEETING. Any action required or permitted to betaken by the board of directors may be taken without a meeting, if all members of the board shall individually or collectively consent in writing to that action. Such action bywritten consent shall have • • the same force and effect as a unanimous vote of the board of directors. Such written consent or consents shall be filed with the minutes of the proceedings of the board. Section 14. FEES AND COMPENSATION OF DIRECTORS. Directors and members of committees may receive such compensation, if any, for their services, and such reimbursement of expenses, as may be fixed or determined by resolution of the board of directors. This Section 14 shall not be construed to preclude any directorfrom serving the corporation in any other capacity as an officer, agent, employee, or otherwise, and receiving compensation for those services. ARTICLE IV OFFICERS Section 1. OFFICERS. The officers of the corporation shall be a president, a secretary, and a chief financial officer. The corporation may also have, at the discretion of the board of directors, a chairman of the board, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with the provisions of this Article. Any number of offices may be held by the same person. Section 2. ELECTION OF OFFICERS. The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article, shall be chosen bythe board of directors, and each shall serve at the pleasure of the board, subject to the rights, if any, of an officer under any contract of employment. Section 3. SUBORDINATE OFFICERS. The board of directors may appoint, and may empower the president to appoint, such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the bylaws or as the board of directors may from time to time determine. Section 4. REMOVAL AND RESIGNATION OF OFFICERS. Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or withoutcause, bythe board of directors, at any regular orspecial meeting of the board, or, except in case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board of directors. Any officer may resign at any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party. Section 5. VACANCIES IN OFFICE. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office. 9 0 Section 6. CHAIRMAN OF THE BOARD. The chairman of the board, if such an officer be elected, shall, if present, preside at meetings of the board of directors and exercise and perform such other powers and duties as may be from time to time assigned to him by the board of directors or prescribed by the bylaws. If there is no president, the chairman of the board shall in addition be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 7 of this Article. Section 7. PRESIDENT. Subject to such supervisory powers, if any, as maybe given by the board of directors to the chairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the board of directors, have general supervision, direction, and control of the business and the officers of the corporation. He shall preside at all meetings of the shareholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the board of directors. He shall have the general powers and duties of management usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the board of directors or the bylaws. Section 8. VICE PRESIDENT. In the absence or disability of the president, the vice presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a vice president designated by the board of directors, shall perform all the duties of the president, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors or the bylaws, and the president, or the chairman of the board. Section 9. SECRETARY. The secretary shall keep or cause to be kept, at the principal executive office or such other place as the board of directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and shareholders, with the time and place of holding, whether regular or special, and, if special, how authorized, the notice given, the names of those present at directors' meetings or committee meetings, the number of shares present or represented at shareholders' meetings, and the proceedings. The secretary shall keep, or cause to be kept, atthe principal executive office or atthe office of the corporations transfer agent or registrar, as determined by resolution of the board of directors, a share register, or a duplicate share register, showing the names of all shareholders and their addresses, the number and classes of shares held by each, the number and date of certificates issued forthe same, and the numberand date of cancellation of every certificate surrendered for cancellation. The secretary shall give, or cause to be given, notice of all meetings of the shareholders and of the board of directors required by the bylaws or by law to be given, and he shall keep the seal of the corporation if one be adopted, in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by the bylaws. I.. �"..H -M1 Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director. The chief financial officershall deposit all moneys and othervaluables in the name and to the credit of the corporation with such depositories as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, shall renderto the president and directors, whenever they request it, an account of all of his transactions as chief financial officer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the board of directors or the bylaws. ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS The corporation shall, to the maximum extent permitted by the California General Corporation Law, indemnify each of its agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with any proceedings arising by reason of the fact any such person is or was an agent of the corporation. For purposes of this Section, an "agent" of the corporation includes any person who is or was a director, officer, employee, or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, or was a director, officer, employee, or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation. ARTICLE VII RECORDS AND REPORTS Section 1. MAINTENANCE AND INSPECTION OF SHARE REGISTER. The corporation shall keep at its principal executive office, or at the office of its transfer agent or registrar, if either be appointed and as determined by resolution of the board of directors, a record of its shareholders, giving the names and addresses of all shareholders and the number and class of shares held by each shareholder. A shareholder or shareholders of the corporation holding at least five percent (5 %) in the aggregate of the outstanding voting shares of the corporation may (i) inspect and copythe records of shareholders' names and addresses and shareholdings during usual business hours on five days priorwritten demand on the corporation, and (ii) obtain from the transfer agent of the corporation, on written demand and on the tender of such transfer agent's usual charges for such list, a list of the shareholders' names and addresses, who are entitled to vote forthe election of directors, and their shareholdings, as of the most recent record date for which that list has been compiled or as of a [H 4153 0 date specified by the shareholder after the date of demand. This list shall be made available to any such shareholder by the transfer agent on or before the later of five (5) days after the demand is received or the date specified in the demand as the date as of which the list is to be compiled. The record of shareholders shall also be open to inspection on the written demand of any shareholders shall also be open to inspection on the written demand of any shareholder or holder of a voting trust certificate, at anytime during usual business hours, fora purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate. Any inspection and copying under this Section 1 may be made in person or by an agent or attorney of the shareholder or holder of a voting trust certificate making the demand. Section 2. MAINTENANCE AND INSPECTION OF BYLAWS. The corporation shall keep at its principal executive office, or if its principal business office is not in this state, the original or a copy of the bylaws as amended to date, which shall be open to inspection bythe shareholders at all reasonable times during office hours. If the principal executive office of the corporation is outside the State of California and the corporation has no principal business office in this state, the secretary shall, upon the written request of any shareholder, furnish to that shareholder a copy of the bylaws as amended to date. Section 3. MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS. The accounting books and records and minutes of proceedings of the shareholders and the board of directors and any committee or committees of the board of directors shall be kept at such place or places designated by the board of directors, or, in the absence of such designation, atthe principal executive office of the corporation. The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any otherform capable of being converted into written form. The minutes and accounting books and records shall be open to inspection upon the written demand of any shareholder or holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to the holder's interests as a shareholder or as the holder of a voting trust certificate. The inspection may be made in person or by an agent or attorney, and shall include the right to copy and make extracts. These rights of inspection shall extend to the records of each subsidiary corporation of the corporation. Section 4. INSPECTION BY DIRECTORS. Every director shall have the absolute right at any reasonable time to inspect all books, records, and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations. This inspection by a director maybe made in person or by an agent or attorney and the right of inspection includes the right to copy and make extracts of documents. Section 5. ANNUAL REPORT TO SHAREHOLDERS. The annual report to shareholders referred to in Section 1501 of the California General Corporation Law is expressly dispensed with, but nothing herein shall be interpreted as prohibiting the board of directors from issuing annual or other periodic reports to the shareholders of the corporation as they consider appropriate. Section 6. FINANCIAL STATEMENTS. A copy of any annual financial statement and any income statement of the corporation for each quarterly period of each fiscal year, and any accompanying balance sheet of the corporation as of the end of each such period, that has been prepared by the corporation shall be kept on file in the principal executive office of the corporation for twelve (12) months and each such statement shall be exhibited at all reasonable times to any shareholder demanding an examination of any such statement ora copy shall be mailed to any such shareholder. If shareholder or shareholders holding at leastfive percent (5 %) of the outstanding shares of any class of stock of the corporation makes a written request to the corporation for an income statement of the corporation forthe three - month, six- month or nine -month period of the then current fiscal year ended more than thirty (30) days before the date of the request, and a balance sheetof the corporation as of the end of that period, the chief financial officer shall cause that statement to be prepared, if not already prepared, and shall deliver personally or mail that statement or statements to the person making the request within thirty (30) days afterthe receipt of the request. If the corporation has not sentto the shareholders its annual report forthe lastfiscal year, this report shall likewise be delivered or mailed to the shareholder or shareholders within thirty (30) days after the request. The corporation shall also, on the written request of any shareholder, mail to the shareholder a copy ofthe last annual, semi - annual, or quarterly income statement which it has prepared, and a balance sheet as of the end of that period. The quarterly income statements and balance sheets referred to in this section shall be accompanied bythe report, if any, of any independent accounts engaged bythe corporation orthe certificate of an authorized officer of the corporation that the financial statements were prepared without audit from the books and records of the corporation. Section 7. ANNUAL STATEMENT OF GENERAL INFORMATION. The corporation shall each year, file with the Secretary of State of California, on the prescribed form, a statement setting forth the authorized number of directors, the names and complete business or residence addresses of the chief executive officer, secretary, and chief financial officer, the street address of its principal executive office or principal business office in this state, and the general type of business constituting the principal business activity of the corporation, together with a designation of the agent of the corporation for the purpose of service of process, all in compliance with Section 1502 of the Corporations Code of California. ARTICLE VIII GENERAL CORPORATE MATTERS Section 1. RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING. For purposes of determining the shareholders entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect of any other lawful action (other than action by shareholders by written consent without a meeting), the board of directors mayfix, in advance, a record date, which shall not be more than sixty (60) days before any IrcVI»u,wY..MI 0 0 such action, and in that case only shareholders of record on the date so fixed are entitled to receive the dividend, distribution, or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided in the California General Corporation Law. If the board of directors does not so fix a record date, the record date for determining shareholders for any such purpose shall beat the close of business on the day on which the board adopts the applicable resolution or the sixtieth (60th) day before the date of that action, whichever is later. Section 2. CHECKS, DRAFTS, EVIDENCES OF INDEBTEDNESS. All checks, drafts, or other orders for payment of money, notes, or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the board of directors. Section 3. CORPORATE CONTRACTS AND INSTRUMENTS; HOW EXECUTED. The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, agent or agents, to enter into any contract orexecute any instrument in the name of and on behalf of the corporation, and this authority may be general or confined to specific instances; and, unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent, or employee shall have any power or authority to bind the corporation by any contractor engagement or to pledge its creditor to render it liable for any purpose or for any amount. Section 4. CERTIFICATES FOR SHARES. A certificate or certificates for shares of the capital stock of the corporation shall be issued to each shareholderwhen any of these shares are fully paid, and the board of directors may authorize the issuance of certificates or shares as partly paid provided that these certificates shall state the amount of the consideration to be paid for them and the amount paid. All certificates shall be signed in the name of the corporation by the chairman of the board or vice chairman of the board or the president or vice president and by the chief financial officers or an assistant treasurer or the secretary or any assistant secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any or all of the signatures on the certificate maybe facsimile. In case any officer, transfer agent, or registrarwho has signed or whose facsimile signature has been placed on a certificate shall have ceased to be that officer, transfer agent, or registrar before that certificate is issued, it may be issued by the corporation with the same effect as if that person were an officer, transfer agent, or registrar at the date of issue. Section 5. LOST CERTIFICATES. Except as provided in this Section 5, no new certificates forshares shall be issued to replace an old certificate unless the latter is surrendered to the corporation and cancelled at the same time. The board of directors may, in case any share certificate or certificate for any other security is lost, stolen, or destroyed, authorize the issuance of a replacement certificate on such terms and conditions as the board may require, including provision for indemnification of the corporation secured by a bond or other adequate security • • sufficient to protect the corporation against any claim that may be made against it, including any expense or liability, on account of the alleged loss, theft, or destruction of the certificate or the issuance of the replacement certificate. Section 6. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The chairman of the board, the president, or any vice president, or any other person authorized by resolution of the board of directors or by any of the foregoing designated officers, is authorized to vote on behalf of the corporation any and all shares of any other corporation or corporations, foreign or domestic, standing in the name of the corporation. The authority granted to these officers to vote or represent on behalf of the corporation any and all shares held by the corporation in any other corporation or corporations may be exercised by any of these officers in person or by any person authorized to do so by a proxy duly executed by these officers. Section 7. CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the California General Corporation Law shall govern the construction of these bylaws. Without limiting the generality ofthis provision, the singular number includes the plural, the plural number includes the singular, and the term "person" includes both a corporation and a natural person. ARTICLE IX AMENDMENTS Section 1. AMENDMENT BY SHAREHOLDERS. New bylaws may be adopted or these bylaws may be amended or repealed by the vote or written consent of holders of a majority of the outstanding shares entitled to vote; provided, however, that if the articles of incorporation of the corporation set forth the number of authorized directors of the corporation, the authorized number of directors of the corporation may be changed only by an amendment of the articles of incorporation. Section 2. AMENDMENT BY DIRECTORS. Subject to the rights of the shareholders as provided in Section 1 of this Article IX, bylaws, other than a bylaw or an amendment of a bylaw changing the authorized number of directors, maybe adopted, amended, or repealed by the board of directors. KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, being the persons appointed by the incorporator to act as the first Board of Directors of POST EARTHWORKS CONSTRUCTORS, INC. hereby assent to the foregoing bylaws and adopt the same as the bylaws of said corporation. IN WITNESS WHEREOF, we have sc-mmlw- 7-009 Jay of Mao 0 0 THIS IS TO CERTIFY: Than I am the duly elected, qualified and acting Secretary of POST EARTHWORKS CONSTRUCTORS, INC. and that the above and foregoing bylaws were adopted as the bylaws of said corporation on by the persons appointed by the incorporatorto act as the first directors of said corporation. IN WITNESS WHEREOF, I have SEPTFMeF L 2009 . hand this X711";7 day of COST, Secretary 0 State of California County of Orange Jurat Subscribed and swom to (or affirmed) before me on this Z day of {h190f 20Mby_G�C13* �flQr I25 S� proved to me on the basis of satisfactory evidence to be the person(/ who appeared before me. I CRYSTAi i MUNOZ s Cammbdon i 1672892 t Notary PublIC • Co9tomW JAIL Orange County Comm. E res Jun.6, 2010 Slgna4 re (Notary Seal) OPTIONAL INFORMATION DESCPJPTION OF THE ATTACHED DOCUMENT A-7 tc is A Inca Pc erbDN (Title or description of attached d)cumenQ (Title ofauached document continued) J q Number of Pages 19 Document Date (Additional infotm3lion) INSTRUCTIONS FOR COMPLETING THIS FORM The wording of all Jurats completed in California after January 1, 2003 Pilot be in theform as setforth within das Jurai. There are no exceptions. ffa Juror to be completed does not follow this form, the notary most correct the verbiage by using a jurat stomp containing the correct wording or aetaching a separate jurat form such as this one which does contain proper wording. /n addition, the notary most require an oath or affirmation from the document signer regarding the truthfulness of the contents of the document. The document must be signed AFTER the oath or affirmation.. 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