Complaint Unlimited Fee Applies

Cal. Super. - 6th Dist.March 24, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 E-FILED 3/24/2021 4:08 PM Shawn D. Morris (Bar No. 134855) gteggrfgrcgouurtrt 0f CA John O. Mersereau (Bar No. 258067) County Of Santa Clar’a MORRIS, SULLIVAN & LEMKUL, LLP 21 cv381 1 19 9915 Mira Mesa Boulevard, Suite 300 San Diego, CA 92131 Phone: (858) 566-7600 Fax: (858) 566-6602 Reviewed By: V. Taylor Attorneys for Plaintiffs, BROOKFIELD NORCAL BUILDERS INC., BROOKFIELD AMBROSIA LLC, and BROOKFIELD MATARO LLC, SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA BROOKFIELD NORCAL BUILDERS INC.; BROOKFIELD AMBROSIA LLC; CASE N0.; 21 CV381 1 19 BROOKFIELD MATARO LLC, COMPLAINT FOR: Plaintiffs, 1. BREACH 0F CONTRACT; V, 2. BREACH 0F EXPRESS AND IMPLIED WARRANTY; and PLATINUM PIPELINE, INC; and DOES 1- 3. NEGLIGENCE 100, inclusive, Defendants. Plaintiffs BROOKFIELD NORCAL BUILDERS INC., BROOKFIELD AMBROSIA LLC, and BROOKFIELD MATARO LLC (hereinafter collectively “PLAINTIFFS”) allege causes of action against Defendants, and each 0f them, as follows: PARTIES 1. BROOKFIELD NORCAL BUILDERS INC., at all times mentioned herein was a corporation, organized and existing under the laws 0f the State of California, and was at all times qualified to do business under the laws of the State of California. 1 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. BROOKFIELD AMBROSIA LLC, at all times mentioned herein was a Delaware limited liability company, organized and existing under the laws of the State of Delaware, and was at all times qualified t0 do business under the laws of the State 0f California. 3. BROOKFIELD MATARO LLC, at all times mentioned herein was a Delaware limited liability company, organized and existing under the laws of the State of Delaware, and was at all times qualified t0 do business under the laws of the State 0f California. 4. Defendant PLATINUM PIPELINE, INC. (hereinafter “PLATINUM”) at all times mentioned herein was a corporation, organized and existing under the laws of the State of California, and was at all times qualified t0 do business under the laws 0f the State of California. 5. PLAINTIFFS are presently unaware 0f the true names 0r capacities 0f Defendants named herein as DOES 1-100, inclusive, and PLAINTIFFS will seek leave 0f Court t0 allege their true names and capacities after the same has been ascertained. 6. PLAINTIFFS are informed and believe and thereon allege that PLAINTINUM, and DOES 1-100, inclusive, (hereinafter collectively “DEFENDANTS”) dispute PLAINTIFFS’ contentions herein and are in some manner legally responsible for the acts and omissions alleged herein and actually and legally caused and contributed to various injuries and damages referred t0 herein. 7. PLAINTIFFS are informed and believe and thereon allege that at all times herein mentioned, each of the DEFENDANTS was the agent, servant, partner, joint venturer, and/or employee of each of the other DEFENDANTS, and in doing the things hereinafter alleged, were acting Within the course and scope 0f said agency and/or employment, and With the permission and consent, express and/or implied, of the other DEFENDANTS herein, and each ofthem, With respect to all matters referred to herein. PLAINTIFFS are informed and believe and thereon allege that PLATINUM and DOES 1 - 100, inclusive, are and at all times herein mentioned were, either individuals, sole proprietorships, partnerships, registered professionals, corporations, or other legal 2 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 entities Which were licensed to d0 and were doing business in Santa Clara County, State 0f California, at all times relevant t0 the subj ect matter 0f this action. GENERAL ALLEGATIONS 8. DEFENDANTS, and each of them, were involved in the business 0f designing, developing, and/or constructing certain areas of the Ambrosia and Mataro proj ects located in Glen Loma Ranch, in Gilroy, California (hereinafter collectively “Projects”). 9. As a direct and proximate result of the negligent and defective work of DEFENDANTS, and each 0f them, the Projects suffered substantial damage including, but not limited t0, excessive cracks and leaking in sewer and storm lines. 10. BROOKFIELD was unaware of the negligence and defective work performed by DEFENDANTS until, at the request of the City of Gilroy, camera testing was performed on the sewer and storm lines. I. FIRST CAUSE OF ACTION (Breach 0f Contract Against PLATINUM and DOES 1-100) 11. BROOKFIELD refers to and incorporates by reference paragraphs 1 through 10 above, as though fully set forth herein. 12. BROOKFIELD is informed and believes and based thereon alleges that BROOKFIELD entered into written agreements with Defendants, and each 0f them, t0 perform certain work or supply certain products at the Projects. PLATINUM’S scope of work included but was not limited t0, installation 0f the storm drains, sanitary sewer, and water distribution lines at the Projects. A true and correct copy of the tradecontract agreements are attached hereto as Exhibit “A” and “B.” (hereinafter “Agreements”) 13. BROOKFIELD is informed and believes and based thereon alleges that pursuant to the terms of the Agreements BROOKFIELD entered into with PLATINUM, and DOES 1-100, inclusive, DEFENDANTS, and each 0f them, were obligated t0 perform an examination of the 3 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 surface area to Which its work is to be attached 0r performed and shall report in writing any related work which is not suitable to accommodate its work, and that commencement 0fDEFENDANTS’ work constituted acceptance by DEFENDANTS of surfaces and conditions t0 Which its work relates and DEFENDANTS were legally responsible for obtaining proper and satisfactory results. This obligation was expressly agreed to pursuant t0 Section 5.7 of the Agreements, as set forth below: 5.7 Tradecontractor shall examine the surface or area t0 Which its work is t0 be attached or performed and shall report in writing any related work Which is not suitable t0 accommodate its work. Tradecontractor shall not proceed with the installation until the same has been corrected. Commencement 0fwork shall constitute and acceptance by Tradecontractor 0fsurfaces and conditions t0 which its work relates and shall be legally responsiblefor obtainingproper and satisfactory results. (emphasis added) 14. BROOKFIELD is informed and believes and based thereon alleges that pursuant t0 the terms of the Agreements BROOKFIELD entered into With PLATINUM, and DOES 1-100, inclusive, DEFENDANTS, and each 0f them, undertook the obligation t0 perform their work at the Projects in a first class workmanlike manner, and in strict conformity with the plans and specifications, all City of Gilroy, County of Santa Clara, and federal ordinances, statutes, including all building codes, and other applicable governing codes, and t0 obtain final acceptance from all government agencies. These obligations were expressly agreed t0 in the Agreements throughout the agreement, including, but not limited to Sections 23, 26, and 27 of the Agreements as set forth below: SECTION 23: PLANS AND SPECIFICATIONS 23.1 Tradecontractor shall comply With all City, County and Federal ordinances, statutes, including all applicable building codes. .. To the extent there is any conflict between the plans and specifications, applicable building codes, and engineering reports Tradecontractor Will perform to the strictest standard(s). N0 work is t0 be deemed complete untilfinal inspection and approval by appropriate public agencies, as well as acceptance by Builder. . .(emphasis added) SECTION 26: GUARANTEES 26.1 Tradecontractor does hereby expressly guarantee the Owner, Builder, and their successors in interest in the work, against any loss or damage arising from any defect in materials furnished 0r workmanship performed under 0r pursuant t0 this 4 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Agreement for a period coterminous With Builder’ responsibility t0 its successors in interest, whether express or implied by law. .. SECTION 27: WARRANTY 27.1 Tradecontractor agrees t0 perform all work in a first class, workmanlike manner. At a minimum, all work should . ..be equal t0 the HUD/FHA Minimum Property Standards, in accordance with all municipal, County and State Building Codes, and in accordance with the terms and conditions as outlined in the contract documents. (emphasis added) 27.2 Tradecontractor expressly warranties its work shall be free 0f any defects in materials and workmanship This warranty shall be in addition to all other rights and privileges which the Builder may have under any other law. Neither final payment nor any provision in the Contract documents shall relieve the Tradecontractor 0f responsibility for faulty materials or workmanship. BROOKFIELD is informed and believes and based thereon alleges that pursuant to the terms of the Agreements BROOKFIELD entered into with PLATINUM, and DOES 1-100, inclusive, DEFENDANTS, and each of them, accepted that their work was not deemed t0 be complete until final inspection and approval by appropriate public agencies, as well as acceptance by BROOKFIELD. This obligation was expressly agreed to by Defendants in the Agreements, including, but not limited to Sections 23 and Exhibit B, paragraph 15 of the Agreements as set forth below: 23.1 Tradecontractor shall comply with all City, County and Federal ordinances, statutes, including all applicable building codes. .. To the extent there is any conflict between the plans and specifications, applicable building codes, and engineering reports Tradecontractor Will perform t0 the strictest standard(s). N0 work is t0 be deemed complete untilfinal inspection and approval by appropriate public agencies, as well as acceptance by Builder. . .(emphasis added) Exhibit B, Paragraph 15. It shall be the responsibility 0f Subcontractor to request and schedule all his job inspections and obtain allfinal acceptance in letterform from all applicable governing agencies, soils and civil engineers so that Contractor may obtain release 0fbonds and make retention payments t0 Subcontractor for his completed work. Removal and reconstruction ofany defective workperformed by Subcontractor 0r work thatfails t0 be accepted shall be the responsibility 0fSubcontract0r t0 correct at his own cost. (emphasis added) 5 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. BROOKFIELD is informed and believes and based thereon alleges that pursuant to the terms of the Agreements BROOKFIELD entered into with PLATINUM, and DOES 1-100, inclusive, DEFENDANTS, and each 0f them, agreed that if improper or substandard material is used on the job site, Whether accepted by BROOKFIELD 0r not, upon discovery, DEFENDANTS would correct 0r remove all substandard work 0r material within five working days at DEFENDANTS’ expense as set forth below: 4. A11 material shall meet or exceed the requirements 0f the applicable governing agencies. If improper or substandard material is used 0n the job site, Whether accepted by Contractor 0r not, upon discovery, Subcontractor shall correct 0r remove all substandard work 0r material Within five (5) working days at Subcontractor’s expense. (see Exhibit B, paragraph 4 0f the Agreements) 17. BROOKFIELD has fully and faithfully performed all conditions, covenants, and promises required to be performed by it in accordance With the terms and conditions 0f said Agreements. 18. BROOKFIELD is informed and believes and based thereon alleges that PLATINUM and DOES 1- 1 00, inclusive, as it relates t0 their work at the Proj ects, have breached said Agreements by failing t0 comply with their contractual obligations including but not limited t0, failing t0 perform their work in conformity With in a first class workmanlike manner, and in strict conformity With the plans and specifications, all City 0f Gilroy, County of Santa Clara, and federal ordinances, statutes, including all building codes, and other applicable governing codes. Further, BROOKFIELD is informed and believes and based thereon alleges that PLATINUM and DOES 1-100, inclusive, as it relates to their work at the Projects, have breached said Agreements by failing to remove and repair it’s defective work. 19. BROOKFIELD is informed and believes and based thereon alleges that pursuant to the terms of the Agreements BROOKFIELD entered into with PLATINUM, and DOES 1-100, inclusive, if any action is instituted between BROOKFIELD, PLATINUM, and DOES 1-100, inclusive, the party prevailing in such action will be entitled to recover from the other party all 0f 6 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its costs of action, including reasonable attorneys’ fees and costs, experts’ fees and costs and the fees and costs. The attorney’s fees provision is contained in section 20 0f the Agreements and states as follows: SECTION 20: ATTORNEY’S FEES If either party to this Agreement institutes litigation or arbitration With the other party, or against the surety 0f such party, arising out of the terms and conditions of this Agreement, 0r performance under this Agreement, the prevailing party shall be entitled t0 recovery from the other party, all associated costs, including but not limited to, costs of investigation, court costs and all reasonable attomeys’ fees incurred in good faith. Unless judgement goes by default, the attorneys” fees incurred by the prevailing party shall be presumed reasonable and shall be awarded. It is the intention 0f the parties t0 fully compensate the prevailing party for all attorneys” fees paid 0r incurred in good faith. 20. BROOKFIELD has retained the services 0f MORRIS, SULLIVAN & LEMKUL LLP to prosecute this cause of action for breach of contract, thereby incurring costs and attorney's fees in the prosecution of this Complaint. BROOKFIELD Will seek leave of Court t0 amend this Complaint t0 show the amount of costs and attomeys’ fees When the same becomes known t0 BROOKFIELD, or will present such sums at the time 0f trial. 21. As a direct and legal result ofPLATINUM and DOES 1-100, inclusive, as it relates to their work at the Proj ects, breach of contract, BROOKFIELD has been damaged in a sum Which is currently unascertainable. BROOKFIELD will seek leave 0f Court to amend this Complaint once such sums can be reasonably ascertained, 0r will present such information at the time 0f trial. II. SECOND CAUSE OF ACTION (Breach 0f Express and Implied Warranties against Platinum and DOES 1-100) 22. BROOKFIELD refers to and incorporates herein by reference paragraphs 1 through 21, as though fully set forth herein. 23. BROOKFIELD is informed and believes and thereon alleges that Defendants, and each 0f them, entered into written and/or oral contracts with BROOKFIELD Which included 7 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 representations that the services performed and/or materials provided were merchantable and in a proper condition for their intended use and purpose. 24. BROOKFIELD is informed and believes and thereon alleges that Defendants, and each of them, pursuant t0 the written and/or oral contracts, impliedly and expressly warranted that the work performed by Defendants at the Project would be fit for its intended use and purpose, namely that all labor performed and services provided would be in a good, workmanlike, and substantial manner, and that their work would be free of any defects in materials and workmanship. 25. BROOKFIELD relied upon said warranties and believed that the work was performed in a first-class and workmanlike manner and that the labor performed and services provided were properly performed by Defendants and was free 0f any defects, and each 0f them, and their agents 0r employees, and fit for their intended use and purpose. 26. BROOKFIELD is informed and believes and thereon alleges that Defendants, and each ofthem, breached said warranties, as it relates t0 their work at the Projects, as more particularly set forth above in the subj ect Complaint, as well as the damages separately incurred by prosecution 0f this Complaint. 27. As a proximate result of the breach of express and implied warranties by Defendants, and each of them, BROOKFIELD alleges that it has suffered damages in a sum equal to any sums paid by way 0f settlement, 0r, in the alternative, judgment rendered against Defendants in this action, and in addition, BROOKFIELD will have incurred other damages separately. 28. This Complaint and previous tender communications will serve as notice of the claims 0fBROOKFIELD, the damages separately incurred by BROOKFIELD, and the allegations by BROOKFIELD that the design and/or construction performed by Platinum and DOES 1-100, inclusive, was defective, and BROOKFIELD is informed and believes and thereon alleges that Defendants, and each of them, decline t0 acknowledge their responsibility to repair the alleged defects as referenced above. 29. BROOKFIELD has retained the services of MORRIS, SULLIVAN & LEMKUL LLP t0 prosecute this action, thereby incurring costs and attorneys” fees in the prosecution of this 8 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint. BROOKFIELD Will seek leave 0f Court t0 amend this Complaint to show the amount 0f costs and attorneys’ fees when the same becomes known to BROOKFIELD, or will present such sums at the time of trial. III. THIRD CAUSE OF ACTION (Negligence against all Platinum and DOES 1-100) 30. BROOKFIELD refers to and incorporates herein by reference paragraphs 1 through 29, as though fully set forth herein. 31. BROOKFIELD is informed and believes and thereon alleges that Defendants, and each 0f them, owed a duty 0f care to BROOKFIELD t0 use reasonable care in the installation, design, manufacture, supply, distribution into the stream of commerce, inspection, observation or repair of their systems, components, materials or other work or services Which does not fall below the standard 0f care 0f the industry. 32. BROOKFIELD is further informed and believes and thereon alleges that Defendants, and each 0f them, breached said duty 0f care by negligently, carelessly, and wrongfully failing t0 use reasonable care in the installation, design, manufacture, supply, distribution into the stream of commerce, inspection, observation or repair of their systems, components, materials or other work 0r services Which fell below the applicable standard of care in the industry, as it relates t0 their work at the Proj ects. 33. BROOKFIELD is further informed and believes and thereon alleges that Defendants, and each 0fthem, negligently and carelessly failed t0 exercise reasonable care and diligence t0 avoid loss and to minimize and mitigate damages t0 the Projects, Which could have been prevented by reasonable efforts on the part of said Defendants, or by expenditures which should have been made in the exercise of due care. 34. BROOKFIELD is informed and believes and thereon alleges that the failures and damages sustained by BROOKFIELD, as to the Projects, occurred because 0f the negligence of Defendants, and each of them. 9 COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35. As a direct and proximate result of the negligence 0f Defendants, and each of them, as it relates t0 their work at the Projects, BROOKFIELD has incurred and continues t0 incur costs and expenses, including, but not limited t0 litigation costs, attorneys” fees, and consultants’ fees t0 inspect, repair, and mitigate damages arising out 0f the negligent construction, design, and repair, as well as the prosecution of this action. WHEREFORE, BROOKFIELD prays for judgment as follows: 1. That BROOKFIELD is entitled to damages for breach of contract by the Defendants, and each of them; 2. That BROOKFIELD is entitled to damages for breach 0f express and implied warranties from Cross-Defendants, and each 0f them; 3. That BROOKFIELD is awarded attorney's fees based 0n contract and pursuant t0 Civil Code Section 1717, Code 0f Civil Procedure Sections 1021, 1032 and 1021.6, as well as any other available remedy; 4. That BROOKFIELD is entitled t0 damages for negligence from Cross-Defendants, and each of them; 5. Pre-judgment interest on a known fixed sum; 6. For costs 0f suit incurred herein; and 7. For such other and further relief as the court may deem just and proper. Dated: March 24, 2021 MORRIS, SULLIVAN & LEMKUL, LLP By: /s/Shawn D. Morris Shawn D. Morris, Esq. John O. Mersereau, Esq. Attorneys for Plaintiffs, BROOKFIELD NORCAL BUILDERS INC., BROOKFIELD AMBROSIA LLC, and BROOKFIELD MATARO LLC, 10 COMPLAINT EXHIBIT “A” MASTER TRADECONTRACT AGREEMENT r FOR CONSTRUCTION BROOIGIELD HOMES INSURANCE PROGRAM (“BI-HP") This Agreement. made this 21m day of April 2015‘ by and between BROOKFELD NORCAL BUILDERS INC. a California corporation, acting as General Contractor and hereinafter referred to as “Builder‘l and PLATINUM PEPELIN'E. INCH LLC. hereinafter referred to as “Tradecontractor”, ls for the performance of pan ofthe work 0n the following project: ACIQVOWLEDGEMENT: Participant in BHIPA‘es E] PROJECT NAME & ADDRESS: PROJECT PHASE: LOT NUMBERS: PROJECT OWNER: CONSTRUCTION LENDER: ADDRESS & LOAN NUMBER: PROJECT BUILDER: PROJECT ARCHITECT: GEOTECHNICAL ENGINEER: PROJECT CIVIL ENGINEER: ENERGY CONSULTANT: PROJECT STRUCTURAL ENGINEER: PROJECT LANDSCAPE ARCHITECT: TRADECONTRACTOR NANEE‘ ADDRESS: TRADECONTRACTOR PHONE/FAX: TRADECONTRACTOR E-MAIL: TRADECONTRACTOR CONTACT: GENERAL SUPERINTENDENT: CUSTOMER SERVICE: EMERGENCY AFI'ER HOURS PHONE: COST CODE/TRADE: Storm Drains 040-124-0010 ~ Pipe 040-124-0020 ~ Manhole 040-124-0040 ~ Stucturcs 040-124-0050 ~ Connect/Plug BHIP HAZARD GROUP NUMBER: N/A DEDUCT % CONTRACT DOCUMENTS Attached Exhibit “A“ - General Terms and Conditions Attached Exhibit Attached Exhibit Attached Exhibit Attached Exhibit “C“ - Options Pricing Report- N/A “‘D‘”- Contract Payment Schedule “E“ - Tradecontractor Proposal TRADECONTRACTOR NAME: PLATINUM PIPELINE. INC. N/A ALLOCATION “B“ - Contract Specifications & Scope of Work NOE AMBROSLA at GLEN LOMA RANCH GILROY N/A N/A BROOKFELD AMBROSIA. LLC NONE N/A BROOIGIELD NORCAL BLULDERS INC 500 La Gouda Way. Suite 100 Damillc. CA 94526 (925) 743-3000 / (925) 743-8052 Fax WOODLEY ARCHITECTURAL GROUP EARTH SYSTEMS PACIFIC RUGGERI-JENSEN-AZAR & ASSOCIATES N/A N/A VAN DORN ABED LA-LV'DSCAPE ARCHITECTS. INC. PLATINUM PIPELINE. INC. 357 Stealth Court Livermore. CA 94551 925.829.6565 / 925.829.7575 N/A LARRY FILMORE BILL SCHNEIDER Sanitarv Sewer 040-130-0010 ~ Pipe 040-130-0020 ~ Manholes 040-130-0030 ~ Laterals 040-130-0050 ~ Connect/Plug 040-130-0100 ~ Other Water Distribution 040-134-0010 - Pipc 040-134-0030 - Hydrants 040-134-0050 - Connect/Plug CONTRACTOR N/A Attached Exhibit “F“ - Sequence Sheet - N/A Attached Exhibit “G” - How to Bill and Lien Releascs Attached - Site Map Attached Insurance Requirements BUILDER NAME: BROOKFIELD NORCAL BUILDERS INC ?V/ / <5” ’ m 0“" m” A f WM Bv: ”C; {"3” /«*B’§’ “ix” LU? LYNN? fa,» Signamrc g" Signature f / By: W f4 i WW Bv: g Mark Saracco Primyne Z PrimNameMm ll Title: Kfiffyfi¢W Time: VP ofopcrations & Purchasing Date: fi/gé/ff’ Date: jg“: (93/; X5 " l License N04 £7731”73 Licensc No; 959107 By executing this Master Tradecontract AgTeement and initialing herein. each pany confirms its consent to and agreement with the provisions 0fthis section, Tradecontractor Initials 1”; Edition Date: rev. 11-29-11 g X / w (a m, x X Date {flé/[ffl Buildermitialswfikiff Dare J "fg‘w/w’ F:\Shared\CONST\PUR‘AC'I'I\/E COMMUNTTESMMBROSLA - Glen Loma’xOffsite - Ambrosia\Contmcts’Platinum Pipelinclnc. - Sanitm-y Sewer - Storm Drgins i - Water - 04.21‘15‘docx EXHIBIT “A” SECTION 1: DESCRIPTION OF WORK, COST PER UNIT AND CONTRACT PRICE. 1.1 Tradecontractor (also sometimes refen'ed to herein as "Subcontractor") agrees to furnish all labor, materials, installation, supplies. equipment, services, machinery, tools, insurance premiums, and other facilities of every kind and description required for the prompt and efficient execution of the work necessary to complete the described duties at the price specified. The job shall be completed in strict accordance with the terms and conditions of this Master Tradecontract Agreement (hereinafter referred t0 as “Ageement”), any Performance Schedule provided by Builder, including, without limitation, the general conditions. specifications. plans and drawings prepared for Builder, as set forth in any Addendum t0 Master Tradecontract Agreement entered into by and between Builder and Tradecontractor ("Addendum“), all of which constitute and are referred to hereinafter as the "Contract Documents," and all applicable codes, ordinances, regulations and policies and to the full satisfaction and acceptance of Builder and applicable inspecting jurisdictions, including all carnage and applicable taxes of any nature whatsoever. In addition, Tradecontractor shall meet or exceed with all applicable functionality standards as set forth in Civil Code Sections 896 and S97. If the Contract Documents and/or codes and/or functionality standards are silent: the work shall be done in accordance with accepted industry standards. Tradecontractor acknowledges that no work shall be performed under this Agreement unless and until Builder and Tradecontractor have entered into an Addendum identifying the specific Project and Tradecontract Scope of Work therefore. SECTION 2: PAYMENT. 2.1 Tradecontractor will not be paid unless it has fully performed such portion ofthe work to the extent billed and until it has complied with all of the provisions of this Agreement. Tradecontractor shall submit monthly invoices for work and materials furnished, in duplicate, to Builder and/or Owner for approval. In addition, to the extent Tradecomractor performs work as an "extra" as defined and as set forth in Section 9 of thjs Master Tradecontract Agreement, such "ema" charges shall be included with Tradecontractor's monthly billing, but in no instance shall such billing be sent to Builder and/or Owner later than thirty (30) days from the date that such "extra" work is completed. Failure to comply with this provision shall serve as a waiver by Tradecomractor for such payment on such "extra" work‘ A11 invoices shall be accompanied by appropriate conditional and unconditional waiver and release documents and forms satisfactory to Contractor. executed by Tradecontractor, its laborers, Hadecontractors and all suppliers who furnished materials to said job to the date ofthe invoice(s). No payment made hereunder shall be construed as evidence of acceptance of any part of the work, nor a waiver of any claim by Builder and/or Owner arising out 0f faulty workmanship or materials 0r fiom failure of Tradeconuactor to strictly comply with the contract documents. 2.2 Tradecontractor understands and agrees that all work must be billed/invoiced within ninety (90) days of completion of work in order to be considered for payment, Any invoice submitted subsequent t0 this time flame shall be considered delinquent and both parties covenant that all rights to payment are waived and no further payment will be required of Builder. For clarification purposes, "completion" of work is defined as follows: when the Scope of Work, as defined in the applicable Addendum, is substantially complete or has been acknowledged as complete by Builder and/or its agents or representatives. 1n no event shall completion of work be determined to be later that the filing date of the Notice of Completion. 2.3 Terms 0f Payment: See Progress Payment Schedule in attached Exhibit "D" to each Addendum. SECTION 3: INDEPENDENT NVESTIGATION. 3.1 Tradecontractor hereby warrants that it has made its own careful and independent investigation and review of the jobsite conditions, plans, specifications, reports, Performance Schedule, and relevant statutes, codes, ordinances, regulations and policies and is fully familiar with the requirements and difficulties presented. Tradecontractor hereby warrants and agrees it is not relying upon any opinion or representation of Builder not contained in this Agreement or other documents incorporated herein. Tradecontractor warrants thaI it has found n0 ambiguity or conflict in the plans and specifications other than those which have been disclosed in writing prior to the execution 0f this Agreement. 3.2 Tradecontractor also warrants that it has verified that all materials and equipment necessary to perform its work are available when and as needed pursuant t0 the Agreement and the Performance Schedule. 3.3 Tradecontractor has visited the site and is familiar with the work completed, if any. including but not limited to. all work in the models and the most recent phase of production. Tradecontractor is aware of all changes thax have been made including those which may not be incorporated into the current set ofplans and Specifications, and it agrees that the contract price for the Scepe of Work includes all previous changes. The Tradecomractor understands that no additional compensation will be considered unless consistent with Section 9 ofthis Tradeconrract Agreement. SECTION 4: CLEAN UP/HAZARDOUS MATERIALS. 4.1 Tradecontractor agrees to clean up and remove fiom premises all waste materials, debris and spoil of every description which may accumulare in the building (if applicable) or about the premises as a result of its work. The premises must be left in a clean and acceptable manner as determined at Builder’s sole discretion. Should the Tradecontractor refuse or neglect to clean up or remove waste materials, debris and spoil upon being directed t0 do so by Builder, Builder may remove same or cause it to be removed by others and the Tradecontractor shall suffer a deduction from its contract price for the expense incurred. 4.2 Tradecontractor represents and warrants to Builder that it, its employees and agents will not release. discard, discharge or dispose of at the Project, on the ground 0r in the surface water thereof, any hazardous substance hereinafter defined. In By executing this Master Tradecoutract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontrac; / / Builder g ‘3 Wm Initials f’flj 4, Date §/é//5 Initials “Tiff: Date fa?“ ”xii Edition atefie/v. 11/22/11 (doc#318222) -bjh @ ms&1 F‘kSharedlCONSTLPURlACTIVE COMMUNITYESIAMBROSIA - Glen LomalOf/site - AmbrosialMaster Contrac! DocleXHIBITA BOILERPLA TE_ 1.3]. I2. docx- 1 the event Tradecontractor breaches this representation or wmanty, said breach shall, (i) constitute a material breach of this Agreement, (ii) entitle Builder to the remedies provided in Section 6.1 of this Master Tradecontract Agreement and (iii) constitute damge to or destruction of property requiring the indemnificalion of Builder and Owner pursuant to Sectiori l3 of this Master Tradecontract Agreement. For purposes of this Agreement, the term hazardous substance shall mean any chemical substance. oiI. waste, petroleum or petroleum product, or other material which is or becomes designated, classified or regulated as beinc "tbxic" or “hazardous" or a "pollutant," under any Federal, State or local law. regulation or ordinance. D O 4.3 Tradecontractor to provide all applicable MSDS information relating to any activities missing from this Agreement pnor to commencing such activities. v 4.4 Tradecontractor acknowledges and accepts that this Project, and all work on this Project, falls under the jurisdiction and authority of the National Pollutant Discharge Elimination System (“NPDES”) General Permit and that this Project has a Stormwater Pollution Prevention Plan (“SWPPP”) program that has been submitted to the NPDES and is implemented on this site. Tradecontractor further acknowledges SWPPPs compliance is mandated and strictly enforced by local and state agencies. Included in the SWPPPs, is the requirement for implementation 0f Best Management Practices (“BMPS”), as approved by the NPDES and SWPPPS and BMPs requirements as to its operations on the site. AH SWPPPs and BMPs requirements are on file in the proj ect traiier with the Project Superintendent and are available for review by all persons working on the Project. It is Tradecontractor's sole responsibility to lmow and be familiar with all NPDES. SWPPPs and BMPS requirements applicable to the Project. Tradecontractor shall clean up its work and debris there fiom in complete compliance with all SW?PP5, BMPs and similar rules and regulations and will, within six hours of notification t0 Tradecontractor onsite personnel, correct all deficiencies if Tradecontractor shall have failed to comply with such rules and regulations or in the event of any Violation notice by any local or state authority. Tradecontractor further acknowledges that any Violations, fines or other costs associated with its noncompliance with all SWPPPs and BMPs shall be borne solely by Tradecontractor irrespective of which entity is cited. fined or incurs costs related to such noncompliance by Tradecontractor. At a minimum. the following BMPs shall be adhered to by all tradecomractors working on the project; 1) Every tradecontractor is responsible for all trash and debris generated from its operations. This includes paper trash (e.g., cigarette butts, lunch wrappers, material wrap and containers); 2) A11 trash and debris is to be properly disposed 0f in designated locations. per NPDES, SWPPPS. BNEPS and/or the Project Superintendent; 3) A11 materials are to be neatly stacked in appropriate areas, as may be designated by Proj ect Superintendent on a continuous and daily basis; 4) During the course ofwork and at the end of each day. the site is to be maintained in a clear and workmanlike manner and in complete compliance with all NPDES, SWPPPs and BMPs requirements. Tradecontractor is responsible to ensure that its employees, tradecontractors and suppliers are aware of and strictly comply with this Article. SECTION 5: WORK COMIVIENCEMENT AND PROGRESS. 5.1 Time is of the essence in this Agreement. Tradecomractor agrees to commence work to be performed hereunder within twenty-four (24) hours of receipt of notice to commence from Builder and to complete its work in accordance with Builder's Performance Schedule and all modifications thereto, which schedule is incorporated herein by reference and made a part hereof. Tradecontractor warrants that it has reviewed the Performance Schedule and is satisfied with it and hereby agrees to review as necessary all modifications to that schedule which will be maintained in the jobsite office of Builder. Builder and Tradecontractor recognize that fiom time-to-time final plans. schedules and specifications for a project may not be complete at the time of execution of the Tradecontract Agreement In such event? Tradecontractor agrees to advise Builder of any objections within seventy-two (72) hours of notice from Builder that the plans, schedules or specifications have been finalized. If, in the opinion of Builder, at its sole discretion, Tradecontractor is not furnishing suficient men, materials or equipment to meet the Performance Schedule, Builder may exercise the options available to it in Section 6 of this Tradecontract Agreement. 5.2 Builder shall maintain observation 0f the premises on which the work hereunder is to be peIformed and shall have the right to determine the Project working hours, the time and the priority of the work of other tradecontractors and all matters concerning the timely and orderly conduct of the work of the Tradecontractor. Unless specifically noted herein. there are no assumptions relative to or 1imitations upon the number 0f move-ins required by the Tradecontractor. 5.3 No Damage for Delay: 1t being expressly contemplated by the parties that in the event Tradecontractor is delayed at any time in its performance of the work by act 0r neglect of the Owner, Architect, Builder, or any employee of Owner, Architect, Builder, 0r of a separate contractor employed by Owner, or by changes ordered in the work, 0r by labor disputes, severe weather, fire, unusual delay in deliveries. work suspensions, acceleration. design defects, changes: unavoidable casualties. or other causes beyond Builder's control, or by delay authorized by Owner pending arbitration, or by other causes which Builder determines may justify delay, then Tradecontractor's sole and exclusive remedy for delay shall be an extension of time for performance of the Tradecontractor‘s work, except and unless such delay is the result of active intentional interference by the Builder and OwnerA No claims for additional compensation or damages for delays, whether in the furnishing of material by Builder or delays by other tradecontractors or Owner will be allowed by the Builder and said extension of time for completion shall be the sole remedy of Tradecontractor. No allowance or extent of time referenced above shall be made unless a claim therefore is presented in writing to the Builder within 48 hours of the commencement of such delay, and under no circumstances shall the time of completion be extended to a daIe which will prevent Builder from completion 0f the entire proj ect within the time that Owner allows Builder for such completion. 5.4 Tradecontractor shall schedule its work and the presence of its employees at thejobsite and any deliveries of supplies or material by its materialmen and suppliers to the jobsite on such days. and at such times and during such hours, as may be directed by Builder. Tradecontractor shall assume responsibility for such schedule compliance not only for its employees, but also for its materialmen and suppliers. 5.5 Tradecontractor shall be responsible for the delivery, unloading, storing and protecting of all equipment, supplies and materials. A11 materials stored on the site must be stored in a container supplied by the Tradecontractor. Garages or any other storage will not be supplied by Builder. Builder shall approve or disapprove Tradecontractor's storage location at its sole discretion. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. Tradecontractorx ' , / M Builder V ,9 H “WInitials M Date 524/ [fix Initials “:73 Date £35,; Wj”? / w 7 / Edition lfaffe: . 11/22/11 (doc#318222) -bjlz @ ms&l F:1SIIared1CON RPURIACTIVE COMMUNITIESVLWIEROSM - Glen LomalOffsite -AmbrosialMasta Cormact DocsHEXHIBITA BOILERPLA TE__1.31.I2.doav 2 5.6 The Tradecontractor shall abide by and conform to any procedures and schedules established by Builder which may be necessitated by Acts of God, Tradecontractor‘s failure to comply with this Agreement, or other factors Which affect completion. Tradecontmctor covenants and agrees to coordinate its work with other tradecontractors and to cooperate with other tradecontractors working on the Project. 5.7 Tradecontractor shall examine the Surface or area to which its work is to be attached or performed and shall report in writing any related work which is not suitable to accommodate its work. Tradecontractor shall not proceed with the installation until same has been corrected. Commencement 0f work shall constitute an acceptance by Tradecontractor of surfaces and conditions to which its work relates and it shall be legally responsible for obtaining proper and satisfactory results. 5.8 Responsibility for Other Trades: Tradecontractor shall assume legal responsibility for the defective work of others. if said Tradecontractor accepts the work, or materials, and proceeds with its Scope ofWork without \witten notification to Builder. 5.9 Liquidated Damages: The parties acknowledge and agree that Builder will suffer substantial damages if Tradecontractor fails to complete the Scope 0f Work contemplated by the Tradecontract Agreement within the duration of time and working days as specified by the Performance Schedule attached hereto. The parties realize that it Will be extremely difficult and impractical, if not impossible, t0 ascertain with any degree of certainty the actual amount of Builder's damages in the event of such failure to perform by Tradecontractor. Therefore, the parties hereby agree that $200.00 per unit per day represents a reasonable estimate of such damages considering all of the circumstances existing on the date of execution of the Tradecontract Agreement and that Builder shall have the right to retain the full amount of said sum against Tradecontractor funds owed on this Agreement, as a remedy to Builder's potential damages should Tradecontractor default. 5.10 In the event a dispute arises between Builder and Tradeconn‘actor during Tradecontractor's performance of the work, Tradecontractor shall continue to perform its obligations under this Agreement unless otherwise notified in writing by Builder. 5.11 Should Owner or Builder institute third party review for any and all facets of the Scope ofWork of Tradecomractor as set forth herein, Tradecontractor shall cooperate fully with any and all requests of said Owner or Builder or third paxty inspector. 5.12 Should Tradecontractor be a subcontractor responsible for providing drywall for or to the Project Builder ‘s project superintendent shall and will inspect any and all drywall delivered to the Project to be used in connection with the performance of the Work, and confirm that prior to incorporation into any Structure, the drywall conforms with the Plans and Specifications and that in any event. the drywall is not identified as being manufactured in China. However, Builder‘s inSpection is secondary to Tradecontractor’s responsibilities under the Contract Documents and does not in any way relieve Tradecomractor for the responsibility for providing the materials per the Plans and Specifications SECTION 6: TERMINATION. 6.1 Tradecontractor shail perform the work in a prompt and diligent manner so as to promote the general progress at the entire Project and shall not interfere with nor hinder the work of Builder or any other tradecontractor. Tradecontractor agrees to reimburse Builder for any and all damages which may be assessed against and collected fiom Builder, which are attributable to or caused by Tradecontractor‘s failure to furnish the materials and perform the work required by the Tradecontract Agreement in the manner provided for herein. If Builder shall deem 1t necessary, Tradecontractor, on demand of Builder, shall provide “additional" workforces, overtime, additional shifts, and shall expedite the furnishing of materials so as to meet the Performance Schedule. 6.2 In the event the Tradecontractor, at any time, refuses or neglects to supply a sufficient number of properly skilled workers or a sufficient quantity of materials of pIOper quality, or is adjudicated a bankrupt, or files a reorganization proceeding. or commits any act of insolvency, or makes an assignment for benefit of creditors without Builder's consent, or fails to make prompt payment to his materialmen and/or laborers. or fails in any respect to promptly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect to contributions 0r payments required to be made to any health and welfare“ pension, vacation, apprenticeship, or other employee benefit program or trust, or fails to fulfill any of the provisions by him to be performed. or otherwise fails to fully perform any and all 0f the Tradecontract Agreement herein contained, Builder may, at his option: (a) After giving 24 hours written notice to Tradecontractor to cure, provide any such labor and materials as may be necessary and deduct the cost thereof from any money then due or thereafter to become due to the Tradecontractor under this Agreement; or (b) Should Tradecontractor fail to cure the default referenced above within 24 hours, the Builder may, at its option, terminate Tradecontractor‘s right t0 proceed with the work and in that event, Builder shall have the right to enter upon the premises 0f the Proj ect and take possession, for the purpose of completing the work under this Agreement, of all materials, tools, equipment, and appliances of Tradecontractor, and may employ any other person(s) to finish the work and provide the materials therefore. 6.3 In the event of Such termination of Tradecontractor’s fight to proceed with the work, said Tradecontractor shall not be entitled to receive any further payment under this Agreement until the scope 0f work of this Agreement is completed. At that time. if the unpaid balance of the amount to be paid under this Agreement exceeds the expenses incurred by Builder in finishing Tradeconn-actor‘s work; such excess shall be paid by Builder to Tradecontmctor; but, if such expense shall exceed such unpaid balance, then Tradecontractor shall promptly pay to Builder the amount by which such expense exceeds such unpaid balance. The term "expense" referred to in the last sentence shall include expenses incurred by Builder for furnishing materials, labor, equipment, and other expenses for finishing the work, for any attorney's fees incurred by Builder effectuating the instant termination or interpreting the Agreement, and any damages sustained by Builder by reason 0f Tradecontractor's default. plus a markup of 15 percent for general and administrative expense, and a 10 percent profit on any and ali of such expenses. Builder shall have a lien upon all materials, tools and appliances taken possession of, as aforesaid. to secure the payment thereof. The notice referred to in this By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontrac fly // r Builder W ( mInitials ?&x/ Date ff? [5’] Initia1s ”$41? Date g? ”zyxff i x / /‘ Wxi " Edition grefl/w 11/22/11(doc#318222) -bjh @ ms&1 EHS/Iared‘lCONSTkPURIACnI/F COIWFVILLVITYESIAJWEROSIA - Glen LomaHQ/fsitt’ - AmbrosiaWIaXler Contract DocleXHIBITA BOILERPLA TE_I.31.IZ.docx n D Séction will be sufficient and complete if written notificalion is given at the Project site or when faxed or mailed to Tradeconnactor at hls fax number or address as shown in this Agreement. 6.4 Builder may withhold, or on account of subsequently discovered evidence, nullify the whole or pan of any payment due to Tradecontractor to such extent as may be necessary to protect Builder from loss, including costs and attorney's fees. on account of: (a) Defective work not remedied; (b) Claims filed 0r reasonable evidence indicating the probable filing thereof; (c) Failure 0f Tradecontractor to make payments promptly to a tradecontractor or for materials. labor. or fiinge benefits; (d) A reasonable doubt that this Tradecontract Agreement will be completed for the balance then unpaid: 0r (e) Damage to Builder or other tradecomractors. (f) Violations of Functionality Standards not remedied as set forth in Civil Code Section 896. 6.5 Builder reserves the absolute right to terminate this Agreement for any reason, including its own convenience. In the event 0f termination without cause. Tradecontractor shall be entitled to payment only as follows: (a) Cost of the work actually performed in conformity with this Agreement; plus (b) Ten percent (10%) of costs referred to in subparagraph (a) above, for overhead and profit, minus any amounts owed to Builder for BHIP coverage and/or any Contractor Allocation expenses. However, in no event shall the Tradecontractor be entitled to any amount that exceeds Sections (a) and (b) above. SECTION 7: LABOR. 7.1 The parties agree and declare that the Tradecontractor and Builder are separate, independent entities and that the Tradecontractor has full responsibility for the performance of the work and the direction of its work force, subj ect only to the duty of the Tradecontractor to cooperate m’th Builder and other tradecontractors. 7.2 Tradecontractor recognizes that in the performance of its work; it will be required to work side-by-side with other tradecontractors and representatives of Builder on the Project. Builder and/or other m-adecontractors may not be signatory to collective bargaining agreements with the various labor organizations. 7.3 Tradecontractor agrees that should there be picketing or a threat of picketing by any labor organization at or near the Project. Builder shall establish a reserved gate for use by the Tradecontractor's employees and suppliers. In that event, it shall be the affirmative obligation of the Tradecontractor, as a material consideration of this Agreement and each and every other agreement between the parties hereto, to insure that its employees and other suppliers use only the gate or entryway designated by Builder. Notwithstandmg the establishment or non-establishment 0f a reserved gate, it shall be the continuing obligation of the Tradecontractor to properly staffthe job with qualified employees without interruption or delay. 7.4 In the event the Tradecontractor's employees refuse to work because of a labor dispute or grievance with the Tradecontractoré Builder or some other tradecontractor, it shall not relieve Tradecontractor of its obligations t0 supply enough properly skilled workers to perform the work undertaken by it without interruption. 7.5 Tradecontractor hereby warrants that it is not now nor will it be delinquent in the payment or reporting to any labor- management fringe benefit trust fund, and further that Tradecontractor is not now nor will it appear on any delinquency list published by any labor-management fringe benefit trust fund. 7.6 Whem in the judgment ofBuilder, Tradecontractor shall have refiJsed, neglected or failed to supply enough properly skilled workers, or otherwise shall have refused, neglected or failed to comply with the provisions of this Section 7, Builder shall be able to exercise its rights in accordance with Section 6 of this Agreement. 7.7 Tradeconrractor also agrees t0 comply with all of the terms and provisions of any Equal Opportunities requirements imposed upon Builder, to the same extent as though said requirements were imposed upon Tradecontractor. provided Builder informs Tradecontmctor of said requirements; and Tradecontractor’s refusal to do so within fony-eight (48) hours of notice by Builder shall permit Builder to exercise its rights and remedies set forth in Section 6 of this Agreement. SECTION 8: TAOGES. Tradecontractor agrees to pay any and all taxes, including specifically, but not by way of limitaiion, sales taxes. use taxes, gross receipt taxes, excise taxes. 01d age benefits, withholding tmes, and unemployment compensation taxes under all State, local and Federal laws with respect to all materials filmiShed and employees engaged in the perfoxmance 0fthis Agreement. SECTION 9: EXTRAS. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. TradecontractoW' / Builder fl m Initials f? / Date {%¢ 1’2 Initials ”2/4? Date k3 "XX "fx f (a:lwlur- / / ‘- -‘-‘ / ’x‘” - Edition Date: rév. 1 1/22/11 (doc#318222) -bflz @ ms&l msnareduCONSNPUMACTIVE COMMLWIHESLAMBROSIA - Glen LomahOffsize - Ambrosiaumszer Comma DoclexmBJTA BOILERPLA 7121.31. 12.1mm- 4 ('K_ 9.1. It is understood and agmed that all labor and/or materials furnished by Tradecontractor, even though said labor and/or materials may not be specifically required or demanded by this Agreement or the Contract Documents, shall nevénheless be deemed to be included within the work; and the scope 0f labor and/or materials properly and necessarily required for the performance thereof. subject only to the following conditions and none other, to wit: that any labor and/or materials furnished hereunder that is authorized in writing by Contractor's departmental Vice President or Director of Purchasing, together with a definite statement in said authorization that said labor and/or material shall be deemed an "extra" and shall be paid for in addition to the contract price at a sum specified in said written authorization. Contractor, at any time during the progress of said Proj eat. may order in wiring deviau'ons. additions 0r omissions 311d the same shall not void this Agreement, but the value thereof, as agreed upon in such writtefi authorization, shall be added to, or deducted from, the contract price hereof. It is expressly agreed between the parties that any work performed by Tradecontractor thaI is not authorized as an "extra" as set forth in this paragaph is not compensable to Tradecontractor by any legal or equitable theory, it being the intent 0f the parties that any such claim by Tradecontractor is legally waived and Tradecontractor shall be estopped from asserting any right of payment. 9.2 It is expressly agreed and understood by and between Builder and the Tradecontractor that no "Extra" charge(s) will be paid without written authorization; that the subcontract price includes performing all work specified according to specification (when applicable) and that said work must comply with all City, County, State and Federal building codes and requirements. as well as the functionality standards set forth in Civil Code Section S96. 9.3 An authorization for any extra work shall be obtained in writing by the use of the "Change Order” form, a sample of which is attached hereto as Exhibit "E." Exhibit "E" is hereby incorporated by reference as part of this Agreement, and wherever said forms are utilized and executed by the parties to this Agreement, the terms thereof shall be fully enforceable as part of this Agreement. SECTION 10: DEVIATIONS. Tradecontractor shall make no changes and shall be responsible for any deviation from the Contract Documents that it may make. and it may be required to re-do any non-conforming work as soon as is practicable to conform strictly to the Contract Documents unless a written authorization by Builder, addressed to the Tradecontractor, shall be given setting forth specifically in detail what changes shall be made. The cost of changes, unless otherwise specifically agreed upon in writing. shall not exceed a credit for any work not required to be done as a result of such changes. SECTION 11: SAFETY (CAL/OSHA) AND DISCIPLINE. 11.1 Tradecontractor. Tradecontractor's employees and agents, and any other party contracting with Tradecontractor shall comply With all applicable Federal. State, local and any other legally required safety, environmental and health standards, orders. rules, regulations or other laws. Tradecontractor shall bear full financial responsibility for the compliance of those persons referenced therein. 11.2 Should Tradecontractor, Tradecontractor‘s employees, Tradecontractor‘s tradecontracmrs, or their employees fail to comply Within twenty-four (24) hours from the time Builder or any governmental agency issues Tradecontractor a written notice of noncompliance, or within the time of an abatement period specified by any government agency, whichever period is shorter, Builder may exercise any ofthe remedies available to it under Section 6 of this Agreement. 11.3 A11 equipment used 0n or near the Project shall be regularly inspected and certified as reliable and dependable and shall be maintained to ensure the safety of the operator and all others on or near the Project. A11 electrical devices (such as cords, connectors, plugs, eta), shall be in good condition and properly grounded. A11 injuries, regardless of severity. will be reported in writing to Builder within twenty~four (24) hours of occurrence. 11.4 A11 vehicles and/or persons driving vehicles on the Proj ect must be licensed, properly insured and registered. 11.5 Drinking of alcoholic beverages or the use of any controlled substance at the Project is strictly prohibited. Tradecontractor‘s employees are prohibited from using the interior of any unit for coffee 0r lunch breaks. Garages and other areas designated by Builder may be used. No dogs are permitted at the Proj ect and radio volume or any audio device will be controlled at the discretion of Builder. Wearing audio headsets at any time is stn'ctly prohibited. Tradecontractor shall comply with all applicable noise abatement ordinances. 11.6 Tradecontractor warrants it is aware of the OSHA Hazard Communication Standard and its requirements. Tradecontractor is to supply Builder with a Material Safety Data Sheet (MSDS) for every hazardous substance Tradecontractor has delivered or uses on the Project. The MSDS is required for any materiaKs) container label using the word(s) "DANGER?" "CAUTION," "FLAMMABLE," 0r "WARNING." Tradecontractor is to insure that all hazardous products are in a container with a label clearly identifying the chemica1(s) with appropriate hazard warnings. A11 labels are to be in English, easily understandable and not defaced. When any substance is transferred from one container to another and is not immediately used solely by the person making the transfer, that container must be labeled with the hazard information from its source. Tradecontractor is responsible for the control and diSposaI of all substance containers and their contents. No empty or partially empty contamer will be permitted to remain on the site afier Tradecomractor has finished using it. A11 empty containers shall be removed from the Project by the Tradecontracmr immediately. 11.7 (a) Tradecontractor aclmowledges that Tradecontractor. and not Contractor, is the “Controlling Employer“ and therefore has the authority and responsibility for the safety 0f its employees, Tradecontractors and materialmen, as well as the safety of other tradecontractors and trades in relation to Tradecontractor‘s work 0r trade, while 0n the jobsite. In funherance By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement m‘th the provisions of this section. ,«v Tradecontractoeg/M/ / / y/ Builder CF” u fl W111mm ?&A Date gagf/f‘ Initials ”FA Date REM“¢?/~A;“* . ./ {I f. v / , -; Edition Day‘é: rev.’ 11/22/11(doc#3182 2 -bjh @ ms&1 FtlSImredlCONSTlPURHCTYVE COAMJWUNITIESIAJWBROSM - Glen LomaLOfl‘Sile -Ambr0$iaLWaSter Contract DOCSLEWIBITA BOILERPLA TE_I.3I.12.d0C\' D thereof, Tradecontractor shall provide safe and sufficient facilities at all times. Tradecontractor shall take all safetv measures related to its work or trade as required by Contractor and all applicable laws, ordinances, rules. regulations and oraers of any public authority including, without limitation, the California Occupational Safety and Heath Act of I973 and all rules and regulations promulgated by the California Department of Industrial Relations pursuant to said Act. In addition thereto. if Contractor deems it necessary, additional security precautions such as fences, watchman, etc. may be required and Tradecontractor shall pay its proportionate share based on the subcontract price ratio to the total construction cost. (b) Tradecontractor shall be responsible to Contractor for the reimbursment 0f any damages suffered bv Coptractor as a result of fmlure to comply with the terms of this Article, including any fines or penalties and damages due to clalms against Contractor for injury t0 persons 0r property. v (c) Tradecontractor, by execution hereof, verifies that all personnel assigned to pexform work under this Agreement have completed safety training specifically required by state/federal OSHA and will be qualified by training and/or experience to complete the assigned work. A11 necessary personal protective equipment deemed appropriate for the work assignment will be provided by the Tradecontractor at its expense to all personnel who will be instructed in the proper selectiom care and use of such safety devices and safe guards. Material Safety Data Sheets (“MSDS”) related to products which mav be used on the project will be provided to Contractor, and any personnel who may be required or permitted to use such products'will have been made aware of the risks associated with such maten’als and the safety precautions necessary to protect peeple, property and the environment. As the “Controlling Employer” with regard to the safety of its own employees, Tradecontractor shall have designated “Responsible, Authorized Person for Safety" on the jobsite at all times that Tradecontractor’s personnel are working on the project. Tradecontractor will identify and arrange for additional safety training as the need arises, will perform continuous hazard recognition for unsafe work practices and/or unsafe work conditions and will abate same, and will eliminate all unacceptable risks howsoever created. It is a condition 0f this Agreement that Tradecom‘ractor have an effective safety and health program that meets or exceeds OSHA requirements. It is Tradecontractor‘s responsibility t0 report any safety or health hazards or potential hazards before commencing any activity that poses any hazard to any person. property or the environment. SECTION 12: PROTECTION OF WORK AGAINST DAMAGE OR INJURY. Tradecontractor shall be responsible for protecting its own work, material and equipment and shall be responsible for the correction, replacement or repair 0f any of its work which is damaged prior to final completion of the Project. Tradecontractor shall be responsible to Builder or third party tradecont'ractors, as appropriate, for any damage to Builder's work or that of third party tradecontractor to Builder whose work is damaged by Tradecontractor. Tradecontractor shall also protect adjacent property fiom injury or damage arising out of its work and shall repair or accept responsibility for any such injury or damage. SECTION 13: INDEWITY FOR NON-DEFECT CLAIMS. 13.1 To the fullest extent permitted by law, Tradecontractor shall defend, indemnify and hold harmless Builder and/or Owner and their officers, directors, agents‘ employees, divisions, subsidiaries. shareholders, partners, affiliated companies. and owners, any lender with an interest in said Project, and all other parties listed as indemnified parties under this Agreement or other entities reasonably designated by Builder/Owner (collectively, "Indemnified Parties") from all claims‘ demands, causes of action, damages, costs, expenses, attorney fees, injuries, losses, suits or liabilities, in law or in equity, of every kind and nature whatsoever (but expressly excluding Defect Claims, as defined in Section 14.1), arising out of or in any way connected with any of the following acts or omissions by Tradecontractor or its officers, directors, agents, employees. divisiOns, subsidiaries, shareholders, partners, affiliated companies or owners, or others for whom Tradecontractor is responsible, including, without limitation. Tradecontractor‘s tradecontractors and materialmen: (i) any willful misconduct or other intentional acts; (ii) any acts or omissions giving rise to a claim for punitive damages; (iii) any acts or omissions of the Tradecontractor or its tradecontractors away from the Project site; (iv) any acts or omissions in connection with ownership, maintenance, use (including transport of mobile equipment) or loan to others of aircraft, automobiles or watercraft owned or Operated by or rented or loaned to Tradecontractor, its tradecontractors 0r others for whom Tradecontractor is responsible; or (v) any acts 01' omissions giving rise to employers liability and/or injury 0r death subject to state workers' compensation laws and regulations. 13.2 Nomithstanding the indemnity owed by Tradecontractor to Builder and Owner as set fonh in Section 13.1 above, to the fullest extent permitted by Iawé if Tradecontractor or any of its tradecontractors including. but not limited to, its officers, directors, agents, employees, divisions, subsidiaries, shareholders, partners, affiliated companies, owners or others for whom Tradecontractor is responsible, is not a participant in Brookfield Homes Insurance Program ("BHIP"), or in the event the BHIP is not applicable to the Project, or if a claim, loss, demand, cause of action: damage, suit. loss or liability falls outside the scope of coverage of the BHIP, then Tradecontractor shall agree to indemnify, defend and hold harmless the Indemnified Parties from and against any and all claims, losses, damages, demands, causes of action, suits, injuries, liabilities, and costs (excluding Defect Claims as defined in Section 14.1) including all costs of litigation, mediation, arbitration and attorney's fees, arising from or relating to (1) any failure by Tradecontractor to perform its obligations under this Agreement, (2) any damage suffered by any Indemnified Party relating to the work perfonned by Tradecontractor. (3) the death of or injury to any person, or the damage to, or, loss of use of, loss of income fiom. or destruction of any property however caused, regardless of any negligence by Builder, Owner or By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontracto M Builder M w b _ Wr’dr‘ ~ - “'A w- »? ‘w ”M Initials Mf/ Date fifi/{fé Inmals W/lg Date 5” z: f /./ l. ff Edition filtefiev. 11/22/11(d0c#318222) -bjh @ ms&l FASImredlCONSflPURkACTIVE COMIWNITIESWVBROSIA - Glen LomaLOf/siza -Ambmsiamlasrer Contract DocsLEXHIBJTA BOILERPM TE_J,31.12.doar 6 Tradecontractor and their officers, agents and employees, be it active 0r passive, or by the use of Builder's equipment labor or facilities regaxiclkss 0f whether (a) Builder shall have consented to such use, or (b) the death, injury or damage shall have beefi caused by unsafe condmons. The duty to defend herein shall arise immediately upon such claim, loss, damage. derhnand. suit. injurv 0r liability beino asserted against Builder and/or the Owner, and their officers, agents and employees. > I V D A11 matters which are the subject of the defense. indemnity and hold hamless provisions under Sections 13.1 and 13 2 above shall cqllectively be referred to as "Non-Defect Claims". Tradecontmctor shall owe a complete defense oblioation to Bu'ilder and Owner 1mmediately upon notice of a Non-Defect Claim that arises out of, pertains to or relates to Tradecontraoctor's scope of work under this Agreement and all addenda hereto. This indemnity obligation shall survive the Completion of Work and termination 0fthis Agreement SECTION 14: INDEMNITY FOR DEFECT CLAIMS. NOTWITHSTANDING ANYTHING IN THIS SECTION 14 TO THE CONTRARY, THE TERMS OF THIS SECTION 14 REQUIRING TRADECONTRACTOR TO INDEMNIFY, HOLD HARMLESS OR DEFEND ANY INDEMNIFIED PARTY SHALL NOT APPLY (A) IN THE EVENT THE BHIP IS APPLICABLE TO SUCH RESIDENTIAL CONSTRUCTION PROJECT; (B) THE TERMS OF THIS SECTION 14 REQUIRE TRADECONTRACTOR. IF ENROLLED AND PARTICPATING IN THE BHIP, TO INDEMNIFY, HOLD HARMLESS OR DEFEND ANY OF THE INDEMNIFIED PARTIES FOR ANY CLAIM OR ACTION COVERED BY THE BHIP; AND (C) \VHERE SUCH CLAIM OR ACTION ARISES OUT OF SUCH RESIDENTIAL CONSTRUCTION PROJECT. T0 THE EXTENT THE TERMS OF THIS SECTION 14 ARE DEEMED UNENFORCEABLE AS PROVIDED HEREIN, ANY 0F THE INDEMNIFIED PARTIES SHALL HAVE THE EXPRESS RIGHT TO PURSUE AN EQUITABLE INDEMNITY CLAIM AGAINST TRADECONTRACTOR UNLESS THERE IS COVERAGE FOR SUCH CLAIM OR ACTION UNDER THE BHIP. 14.1 Notwithstanding anything in Section 13 to the contrary, Tradecomractor shall defend. indemnify and hold harmless the Indemnified Parties to the fullest extent permitted by law, fiom and against any and all claims, demands, causes of action, damages, costs, expenses, attorneys fees, injuries, losses, suits or liabilities arising from or out of a claimed defect in the design, construction, workmanship, materials or functionality of any work of improvement (collectively, "Defect Claims“) . whether in law 0r in equity, including all costs of pre-Iitigation. litigation, mediation and arbitration and all consultant, expext and attorney fees arising out ofi pertaining to, or relating to the scope of work of Tradecontractor howsoever caused, and regardless of any fault on the part of Tradecontractor including, but not Iimtied to,” (1) the reasonable value 0f repairing the work of Tradecontractor, (2) the reasonable cost of repairing any damages caused by the repair efforts, (3) the reasonable cost 0f repairing and rectifying any damages resulting from the failure of the home t0 meet building standards, codes or industty standards. (4) the reasonable cost of removing and replacing any improper repair by the Tradecontractor, (5) reasonable relocation and storage expenses. (6) Iost business income if the home was used as a principal place of a business licensed to be operated from the home, (7) reasonable investigative costs for each established violation, and (8) all other costs or fees recoverable by this Agreement or by statute. except to the extent the damages arise out of, pertain t0, or relate to the negligence of the Builder and/or Owner or their other agents, other servants, or other independent contractors who are directly responsible to the Builder and/or Owner, or defects in design furnished by those persons, or t0 the extent the damages do not arise out 0f, pertain to. 0r relate to the Tradecontractor's scope ofwork under this Agreement and all addenda to this Agreement. 14.2 Under Section 14.1 above? if applicable, Tradecontractor's duty to defend is immediate. It arises immediately upon written tender of a Defect Claim, 0r portion thereof, by an Indemnified Party to Tradecontractor. Tradecontractor’s obligations and duty to defend is as broad as allowed by law and applies whether the issue of the Indemnified Panies’ liability, breach of this Agreement or other obligation or fault has been determined. Within ninety (90) days of Tradecontractor’s receipt of the written tender, Tradecontractor is required to provide written notice to Builder and Owner of its election t0 satisfy its defense obligation t0 the Indemnified Pmfies under this Section. Tradecontractor may choose to satisfy its defense obligation t0 the Indemnified Parties by electing either ofthe following choices: (a) Defend and Control Defense: Tradecontractor may elect to defend the Defect Claim with counsel of its choice. Tradecontractor will be required to defend and maintain control of the defense for any Defect Claim or portion of a Defect Claim to which its defense obligation applies. The defense by the Tradecontractor shall be a complete defense of the Indemnified Parties 0f all Defect Claims or portions thereof to the extent alleged to be caused by the Tradecontractor, including any vicarious liability claims against the Indemnified Parties resulting from the Tradecontractor‘s scope 0f work This defense obligation does not include Defect Claims or portions thereof resulting from the scope 0f work, actions or omissions of the Indemnified Parties or any other party. Any vicarious liability imposed on the Indemnified Parties shall be directly enforceable against the Tradecontractor by the Indemnified Parties or claimant. (b) Pav an Allocated Share 0f Defense Fees and Costs: Tradeconrractor may elect t0 pay an allocated share of the Indemnified Parties‘ defense fees and costs on an ongoing basis during the pendency of the Defect Claim. Tradeconrractor is required to pay its allocated share within thirty (30) days of receipt of an invoice from the Indemnified Parties, including any amounts reallocated upon final resolution of the Defect Claim by settlement or judgment. The Indemnified Parties shall determine the allocation and shall allocate a reasonable share to each Tradecontractor to the extent the Defect Claim or portion thereof is alleged to be caused by the Tradecontractor‘s actions or omission regardless of whether the Indemnified Parties actually tender the Defect Claim to any particular tradecontmctor or whether the particular tradecontractor is pafiicipating in the defense. To the extent a Defect Claim or portion thereof is alleged to be caused by the Indemnified Parties' work, actions or omissions, the Indemnified Parties will also be allocated a share. 1f more than one tradecontractor shall be obligated to defend the Indemnified Parties. then the lndemnified Parties will allocate to each tradecontractor a share of such fees and costs on a pro rata basis so that all tradecontractors with a defense By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontractoy/ Builder ‘ w m m Initials ff Date flfi/f/ Initials T}??? Date 5 “’cf’f“!f " A7” 7 / Edition D e.- rM11/22/11(doc#313222) -bjh @ ms&z FASImrea‘kCONSNbRIACHVE COMVIMWTIEMMBROSIA - Glen Lomawomire - Ambrosmwwer Comma: DocsLEXHIBITA BOILERPLA TE_ 1.31. 1.1mm- 7 obligation will pay equal shares. This defense obligation shall not limit the defense and/or additional insured obligations ofthe Tradecontractor's insurance carrier. 14.3 Under Sections 14.1 and 14.2, above. only disputes regarding (a) Tradecontractor's allocated share. and’or (b) Tradecontractor‘s failure to pay its allocated share, may be raised. A dispute regarding Tradecomractor‘s allocated share may be raised only after such share has been subject to reallocation upon full and final determination ofthe Defect Claim. Resolution of the dispute shall be stayed until after the Defect Claim is finally resolved. A11 such disputes are tolled. Anv such diSpute shall be resolved through binding arbitration. The parties may elect to retain a mutually selected arbitrator or cohduct the arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS in effect at such time. Notice of the demand for arbitration shall be filed in writing with the other party and/or with JAMS. Unless otherwise agTeed by the parties. the arbitration shall take place within thirty (30) days of the appointment of the arbitrator. The award rendered by the arbitratof shall be final. binding and non-appealable, and judgment may be entered thereon in accordance with the applicable law of any court having jurisdiction thereof. Notwithstanding the foregoing, if the Indemnified Parties are bound to any alternative dispute resolution procedure with any homebuyers (or homeowners association), Tradecontractor agrees to be bound by‘ and to participate in. such other procedures, t0 the extent the Tradecontractor‘s work is an issue in such other proceeding. 14.4 If a Tradecontractor fails to timely and adequately perform its defense obligations herein, said Tradecontractor waives any and all rights to challenge, contest or dispute the amount of reasonableness of any settlement of the Defect Claim reached by the Indemnified Parties 0r any other tradecontractor and the claimants. Said Tradecontractor shall be bound by the amount 0f any settlement of the Defect Claim reached by the Indemnified Parties or any other tradecomractor and the claimants. The binding effect of this provision shall in no way diminish or reduce the Tradecontractor's right to defend itself or assert all available defenses relevant to its liability in any subsequent trial. In addition, upon Tradecontractor's failure to timely and adequately perform its defense obligations herein, the Indemnified Parties may, at their sole option, elect in writing either to: (1) treat this Agreement as continuing and enforce the same by specific performance; (2) seek compensatory and consequential damages, reasonable attorneys' fees and costs incurred to recover said damages and interest on defense and indemnity costs from the date incurred; or (3) increase Tradecontractor‘s allocated share by fifty percent (50%), not as a penalty, but as an agreed, reasonable liquidated damage. The Indemnified Parties and Tradecontractor agree that at the time this Agreement is entered into actual damages are difficult to calculate and that an increase in Tradecontractor's allocated share by fifty percent (50%) shall be a reasonable approximation of actual damages incurred, but without the expense or litigation. In the event of election by the Indemnified Parties to retain the liquidated damages set forth above, ten (10) days written notice to Tradecontractor shall be given. The liquidated damages identified above shall be paid to the Indemnified Parties upon written demand. Such liquidated damage will not be subj ect to reallocation. The Indemnified Parties may sue t0 collect such liquidated damages from Tradecontractor. 14.5 Upon full and final determination of the Defect Claim, Tradecontractor's allocated share of the Indemnified Parties' defense fees under Section 14.2(b) above will be reallocated t0 the extent the Defect Claim or portion thereof t0 which the defense obligation applies is determined to arise out of, pertain to or relate to the negligence of the Indemnified Parties or the Indemnified Parties' other agents, other servants, or other independent contractors who are directly responsible to the Indemnified Parties. Should the Indemnified Parties fail to reallocate upon a Tradecontractor's request within thirty (30) days following final resolution of the Defect Claim, Tradecontractor may seek compensatory and consequential damages, reasonabie attorneys‘ fees and costs incurred to recover said damages and interest on the fees fiom the date of final resolution of the Claim. 14.6 Upon mitten notice t0 Tradecontractor by Builder and/or Owner of any claim brought by a Homeowner pursuant to Civil Code Section 895 et. $qu, Tradecontractor shall immediately aclmowledge notice of such claim and shall submit written acknowledgment to Builder and/or Owner not later than founeen (14) days 0f receipt of such notice, and shall participate in the investigation, inspection and, if necessary, repairs to the work of Tradecontractor and all resulting damage arising out of work of Tradeconuactor ax Tradecontractor's sole cost and expense. Tradecontractor shall take all reasonable measures to ensure that its liability cam'ers are immediately tendered upon receipt of a notice of claim and shall request its carriers to undertake all necessary action to facilitate the inspection and testing of Tradecontractor‘s work and to the extent necessary, to obtain the participation of its carriers in connection with any agreed upon mediation concerning the Tradecontractor's work, materials or supplies. 14.7 Upon written demand made by Builder and/or Owner, Tradecontractor. within thirty (30) days of such written demand, shall provide copies of all job files. work orders, plans, specifications. reports, engineering calculations, and all other documentation including but not limited t0 field notes, summaries, and photographs so as to ensure that Builder andjor Owner are in compliance with all legislation, regulations and law. It is understood and agreed to by Builder and/or Owner that all reasonable copying costs shall be borne by Builder and/or Owner. 14.8 Tradecontractor acknowledges, agrees and warrants that should Builder and/or Owner inspect any claimed unmet standards presented by the Homeowner, that Tradecontractor shall complete an initial inspection and testing within fourteen (14) days after acknowledgment of the receipt of the notice of the claim presented by the Builder and/or Owner at a time and location agreed to by the HomeownerA A11 costs of the inspection and testing, including any damage caused by the Tradecontractor‘s inspection shall be borne solely by the Tradecomractor. Tradecontractor shall also provide, upon written demand, written proof that Tradecomractor has liability insurance t0 cover any damage or inj uries occurring during the inspection and testing. Tradecontractor agrees that it shall restore the property to its pre-testing condition within forty-eight (48) hours after the completion of such testing. The Tradecontractor shall, upon request, allow the inspections to be observed and electronically recorded, videotaped or photographed by the Homeowner, Builder and/or Owner, or their legal representative. 14.9 Should Tradecontractor believe it is necessary for a second inspection or testing to be undertaken, Tradecontractor shall submit to Builder ancL/or Owner in writing, within three days following the initial inspection. the reasons and basis for which a second inspection or testing is necessary. Subject to the approval provided by the Homeowner, Tradecontractor may conduct a second inspection or testing with and in the presence of Builder and/or Owner. Tradecontractor warrants that the second inspection or testing shall be completed within forty (40) days ofthe initial inspection or testing. By executing this Master Tradecoutract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. / . TradecontraW «r f Buxlder « I ‘ Initials f Mf/ Date 1/5/ ) Initials “3%; Date ‘(flgpa’vw‘w .. w f Edition Da e: réi‘i 11/22/11(doc#318222 -bjh @ ms&1 EhSltaredlCONSTlPURI/ICTIVE COMMLUV'ITIESL/LMBROSIA - Glen LomahOffsite -Ambrosiah‘l4m‘ter Contract DocleXHIBITA BOILERPLA TE_I.3I.12.docx 8 14.10 In the event that Builder and/or Owner and/or any inspector retained by Homeowner and/or Builder and/or Owner determines that the Tradecontractor's work is not in conformance with plans and specifications: or was improperly completed. or was not in compliance with industry standards, codes, and/or regulations, Tradecontractor warrants, at its sole cost and expense. to undertake any and all repairs necessary to correct and repair the work upon written demand by Builder and/or Owner. > 14.11 Upon written demand made by Builder and/or Owner to repair the work of Tradecontractor, Tradecontraotor shall. within thirty (30) days of the initial oré if requested, second inspection or testing, offer in writing to repair the work and t0 provide é detailed, specific, step by step statement identifying the particular repair effofis and methodologies to be undertaken by Tradecomractor. explaining the nature. scope and location of the repair, and in setting a reasonable completion date for the repair. The offer to repair made by Tradecontractor shall also compensate the Homeowner for all damages recoverable to the extent caused by 0r arising out ofthe work of Tradeconu'actor. 14.12 In the event that the Homeowner elects the right t0 have its own contractor perform the repairs, Tradeconrractor shall pay for all such repairs to its completed work and shall fully indemnify Builder and/or Owner for the cost of any and all such repairs if it is found by Builder and/or Owner that Tradeoontractor is at fault. 14.13 Should the Homeowner, authorize Builder and/or Owner to proceed With the repair. Tradecontractor shall fully cooperate with Builder and/or Owner to ensure repairs are properly undertaken and completed with respect to the Tradecontractor's work at the sole cost and expense of Tradecontractor. Nothing in this Agreement shall preclude Tradecontractor fiom pursuing claims of contn'buu'on or indemnity against any and all other tradecontractors for whom Tradecontractor believes is partly or wholly at fault in connection with the damage claimed by the Homeowner. 14.14 Tradecontractor warrants that in the event that the Homeowner authorizes the Builder and/or Owner or one of the alternative contractors to perform the repair, but not the Tradecontractor, Tradecontractor warrants that it M11 fully reimburse and indemnify Builder and/or Owner for any such repairs undertaken by the selected contractor to perform the repairs on Tradecontractor’s work. Such payment must be made within thirty (30) days of the completion of the repair work. 14.15 Tradecontractor warrants thax upon the electiOn of Builder and/or Owner and/or Homeowner, Tradecontractor shall perform repairs as agreed to and set forth by the Parties arising out of mediation or. in the alternative, if mediation fails to resolve the dispute, upon the repair methodology chosen by the Builder and/or Owner. Such repairs shall be completed by Tradecontractor within a reasonable time at its sole cost and expense. Builder will deduct all reasonable costs of repair from any Contractor Allocation owed to Builder as set forth in Section 15.1(f). 14.16 Tradecontractor, in the event that a resolution involves a repair by the Builder and/or Owner but not performed by Tradecontractor, shall pay for, fully reimburse, indemnify and render whole Builder and/or Owner for any repair costs incurred as a result of the repair effort agreed upon between Builder and/or Owner and Homeowner. Tradecontractor shall quy compensate Builder and/or Owner of all damages resulting from the work which is subject to the repair so as to fully hold Builder and/or Ovmer harmless of any such damages. 1n the event that Builder and/or Ovmer selects Tradecontractor t0 undertake repairs, Tradecontractor agrees to commence repairs within fourteen (14) days of the election made by Builder and/or Owner. Tradecontractor shall act with reasonable diligence in assisting in obtaining all necessary permits and t0 complete all work within the time prescribed by Builder and/or Owner. Tradecontractor shall ensure that the work done on the repairs is done with the utmost diligence, and that the repairs are completed as soon as reasonably possible, subject to the nature of the repair or some unforeseen event not caused by the Builder and/or Owner or the contractor performing the repair. Every effort shall be made to complete the repair within one hundred twenty (120) days. The Builder and/or Owner shall, upon request, allow the repair of the Tradecomractor to be observed and electronically recorded, videotaped or photographed by the Homeowner, his legal representative, or by Tradecontractor. 14.17 1n the event that the Homeowner elects a monetary settlement, Tradecontractor shall pay for all portions of the settlement reached with Builder and/or Owner to the extent is caused by, arises out of or is resulting from the Tradecontractor’s work as determined by Builder and/or Owner or their respective inspector. 14.18 In the event That a mediation takes place between Homeowner, Builder and/or Owner, Builder and/or Owner shall agree t0 allow Tradecontractor to participaxe in the mediation. A11 costs of the mediator shall be shared equally between the Builder and/or Owner and Tradecomrractor less any monies paid by Homeowner towards the cost of the mediation process. 14.19 The duties and obligations imposed upon Tradecontractor under this Section of the Agreement are not exclusive and are in addition to the duties and obligations imposed upon Tradecontractor under the remainder of this Agreement. SECTION 15: INSURANCE. Prior to commencement of any Work under this Agreement, Tradecontractor shall, at its sole expense, fully comply with the terms of this Section 15. 15.1 BROOKFIELD HOMES INSURANCE PROGRAM: Builder and/or Owner has established the Brookfield Homes Insurance Program, which, in the event Builder is enrolled therein, provides the following insurance coverage for Builder, Owner and specified Tradecontractors, hereinafter called BHIP. a) GENERAL BHIP COVERAGE. BHIP is for the benefit of Builder and/or Owner, its officers, directors, agents. employees, divisions, Subsidiaries, shareholders, partners, affiliated companies, and owners, any lender with an interest in said Project, and all other parties listed as indemnified parties under the Tradecontract Agreement including tradecontractors of all tiers who are specifically enrolled. Builder and/or Ovmer, at its sole discretion shall determine which tradecontractors are to be enrolled in BHIP, and such determination shall be binding. BHIP shall apply only to work performed at the project, unless otherwise indicated as part of this Tradecontract By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecomract / Builder F m _. , W. InitialsW ijggMM Initials “Fig Date flag??? 74.», Edition Mafia. I 1/22/11 (doc#318222) --bjh @ ms&l [7:1SllaredfiC0MS‘TkPURL/1CYYVE COMMUNITIESLAMBRO$IA - Glen Loma10flsi1e - AmbrosiaLMafler Contract DocsLEXHIBITA BOILERPLA TE_I.31. Ildoav 9 Agreement. BHIP shall not or will not cover suppliers and/or subcontracts with a contract value less than an amount t0 be determined by Builder and/or Owner or any other tradecontractors. Builder and/or Owner elects to exclude. Unless otherwise directed by Builder and’or Owner in writing, the excluded tradecontractors and any tradeconu-actor performing work for the Project off the Proj ect site shall secure and maintain at their own cost the insurance coverage specified in Sections 15.1 (g), i). ii), iii), 15.2. 15.3. 15.4, 15.5. 15.6“ 15 7 15 8 15 9 15.10. I . r . A, b) SPECIFIC BHIP COVERAGE. BHIP shall include General Liability insurance only. Tradecontractor shall be covered under the Project‘s General Liability insurance policy relative to Tradecontractor's work on the Proj ect. Builder and/or Owner shall provide Tradecontractor an insurance certificate evidencing coverage. The furnishing of BHIP coverage shall in no way relieve or limit any responsibility, liabilityvor obligation of Tradecontractor imposed by the Contract Documents or by law including, without limitation. any défense or indemnification obligations which Tradecontractor has to Builder and/or Owner, to the maximum ement allowable by law. Tradecontractor shall pay its pro-rata share of the cost of BHIP based on its total contract amount and either Tradecontractor's current rate for liability coverage or its Hazard Group designation as defined by Builder at Builder's sole discretion. h c) BUSINESS AUTO LIABILITY AND WORKERS' COMPENSATION/ EMPLOYEE LIABILITY INSURANCE. Notwithstanding BHIP, Tradecontractors shall secure and maintain at their own cost insurance consistent with Sections 15.5, 15.6, & 15.7. d) BHIP PROCEDURES. Tradecomractors shall fully cooperate with Builder and/or Owner and its insurance administrator in connection with BHIP. Tradecontractor‘s responsibilities shall include without limitation: i) providing all relevant, pertinent and necessary contractual, operational and insurance information within a reasonable time, but no later than 45 days after the signing of the Agreement and representing and warranting that all such information shall be accurate and complete: ii) notifying Builder and/or Owner of all subcontracts awarded. However, such notification does not give rise to any insurance coverage unless said Tradecontractor‘s tradecontractor is specifically enrolled in BHIP; an¢ iii) complying with safety: accident prevention and claims reponing and handling procedures. e) DEDUCTION OF BHIP INSURANCE COSTS. 1n consideration for Builder and/or Ovmer providing the coverage specified in BHIP, Builder and/or Owner, and/or its insurance administrator shall deduct insurance costs from the amounts otherwise due from Builder and/or Owner to Tradecontractor. As specified in 15.1(f) below, Tradecontractor‘s insurance rates shall be calculated based upon Tradecontractor‘s Hazard Group designation. Builder and/or Owner' calculation shall be conclusive. except for manifest mathematical errors. t) TRADECONTRACTOR CONTRACTOR ALLOCATION. Following any applicable wananty period, Tradecontractor agrees that for any and all claims arising out of or in any way connected with the acts or omissions of Tradecontractor 0r Tradecontractor‘s scope of work or services at the proj ect, and after written notice to Tradecontractor by Builder or Owner, Tradecontractor shall pay to Owner or Builder either the actual repair costs and any other fees and costs incurred by Owner or Builder that reasonably relate to Tradecontmctor's proportionate share of alleged liability, per Occurrence, up to a maximum amount 0f the contractor allocation at Builder’s sole discretion, as defined below. If or to the extent Tradecontractor fails to timely pay the amounts due under this Subsection in response to Builder's written demand, Builder may use the following methods to collect amounts due fiom Tradecontractor: Builder may back-charge Tradecontractor, may withhold from monies otherwise owing to Tradecontractor. 0r may collect by any other lawful means the amounts owed by Tradecontractor pursuant to this Subsection, including any incmed attorney fees and costs. Tradecontractor‘s obligation to Builder/Owner for any contractor allocation is separate and independent from Builder/Owner‘s obligation to the BHIP insurer for any contractor allocation. Tradecontractor’s contractor allocation shall not exceed its hazard group category designation for each “Occurrence" as defined in BHIP. Tradecontractor shall either be identified as being placed in a Hazard Group category m'th a Contractor Allocation as described (i) 0n cover sheet 0f each Addendum entered into pursuant t0 this Master Tradecontract AgTeement, or (ii) on the cover sheet of this Master Tradecontract Agreement. 0) LIMITATIONS ON COVERAGE. Neither Builder nor Owner makes any representation or warranty to Tradecontractor as to the adequacy of coverage for deecontractor under the BHIP insurance as to risks and exposuxes faced by Tradecontractor. Tradecontractor acknowledges that the insurance available is a fixed amount which will be shared by multiple insureds. Neither Builder nor owner assumes any obligation to Tradecontractor concerning any insurance other than that described herein. Tradecontractor acknowledges that a copy of the current policy form of the BHIP policy was made available to Tradecontractor before execution of this Agreement, and that Tradecontractor has conducted such investigation and evaluation of such coverage as it deems fit, with insurance and legal professionals of its own choosing pn’or to execution of this Agreement, and has satisfied itself as to the coverage provided and the suitability of such coverage to its individual needs. Tradecontractor acknowledges that the terms of coverage are set forth in the BHEP policy, and that descriptions 0f such coverage terms herein or in other information or statements (written or oral) provided by Builder. Owner, or their gents do not alter, amend or supersede any terms contained in the policy itself. Tradecontractor acknowledges and agrees that the BHP policy does not apply to any work performed by Tradecontractor for any person other than Builder or Owner or to any work or activities of Tradecontractor other than Tradecontractor‘s By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontracw/ /‘7 , Pry, Builder M t" W W MM» Initials /W 7 Date 42/934?“ Initials WfiV/T Date j wfi/W f a Edition Délte: I 'v. 11/22/1 1(d0c#318222) -bjh @ ms&l F:\Slzared1CON PURLACTIVE COMMUNITYESWWBROSZA - Glen LomalOffi‘ire - Ambrosia [Master Contract DocsLEXHIBITA BOILERPLA TE_1.3].12. doax‘ 10 work on the Project. Tradecontractor fiuther acknowledges and agrees: that neither Builder nor Ovmer is an agent or fiduciary of Tradecontractor with respect to procurement of insurance; that neither Builder, Owner. the Project Iender(s), nor the insurance program administrators are agents, partners or guarantoré of any insurance company providing such coverage; and that neither Builder nor Owner is responsible for any disputes between or among any such insurer and Tradecontractor or other program participants. Tradecontractor may and shall maintain any and all additional insurance as it deems fit for its own unique insurance needs, so as to protect its ovm interests, but shall do so at no cost to Builder or Ovmer. Existence of coverage for Tradecontractor under the BHEP policy shall in no way relieve or limit any obligation or liability of Tradecontractor as imposed by this Agreement including, without limitation, indemnification obligations, to the maximum extent allowable by law. 1n the event Builder or Tradecontractor is not enrolled in the BHIP, prior to commencement of any Work under this Agreement or, if enrolled. upon the occurrence of any event that renders the BHIP inapplicable to the subject Project, within thirty (30) days notice by Builder and/or Owner of such event, Tradecontractor shall obtain Comprehensive General Liability coverage as set forth below: i) COWREHENSIVE OR COMMERCIAL GENERAL LIABILITY INSURANCE. Tradecontractor shall maintain Comprehensive or Commercial General Liability Insurance on an ”occurrence" basis, naming Builder/Owner as an additional insured (with Completed Operations coverage), With reasonably acceptable deductibles, not to exceed Ten Thousand Dollars ($10,000), with a combined single limit for bodily injury and property damage of Two Million Dollars ($2.000,000), or limit carried whichever is greater. covering Operations: Independent Tradecontractors, Products and Completed Operations (for 10 years after Final Acceptance). Contractual Liability specifically covering the indemnification contained in Sections 13 and 14 of the Agreement, Broad Form Property Damage including Completed Operations. Severability of Interest and Cross Liability clauses: Prior Acts Exclusion stating the General Liability policy shall not include any limitation of coverage ancL’or exclusion including but not limited to Prior Acts Exclusion and/or and excess liability insurance policies. ii) ADDITIONAL INSUREDS. In the event Tradecontractor cannot obtain additional insured endorsements as specified herein and in paxficular under Paragraph 15.1(g)(i), Tradecontractor shall immediately agree t0 provide t0 Builder and/or Owner proof of the unavailability of such additional insured endorsements by the submission of one letter from one licensed insurance broker. [n addition. Tradecontractor shall agree to fully defend, indemnify and otherwise hold Builder and/or Owner harmless for any claims made by any third party as against Builder and/or Project Owner arising out of the completed work of Tradecontractor. subject to the provisions set forth in Sections 13 and 14 of this Agreement. iii) PRIMARY ENDORSEMENT. The following language must be included on the endorsement: "This Insurance is primary and any other insurance maintained by such additional insureds is noncontfibuting with this insurance as respects claims or liability arising out 0f or resulting from the acts or omissions of the named insured, or of others perfoxmed on behalf of the named insured". 15.2 GENERAL INSURANCE REQUIREMENTS. Tradecontractor shall not commence any work until it obtains all insurance required t0 be obtained by Tradecontractor under this Agreement. Builder will not permit Tradecontractor t0 commence any portion of the work 0n the Project until Tradecontractor has complied with all of the insurance requirements described in this Section 15. A11 Insurance described under this Section 15 to be canied by TradeconIIactor will be maintained by Tradecontractor at its sole expense with insurance cam’ers licensed and approved to do business in California, having a general policyholders rating of not less than an "A" and financial rating of not less than "8" in the most current Best's Key Rating Guide. In no event will such insurance be terminated or otherwise allowed to lapse prior to termination of the Agreement or such longer period as may be specified herein. Should Tradecontractor fail in Whole or in part to comply with any ofthe requirements set forth in this Section 15, such a failure shall be deemed a material breach to this Agreement thereby entitling Builder to all available legal remedies including, but not limited to, those set forth in Section 6. Tradecomractor may provide the insurance described in this Section 15 in whole or in part through a policy 0r policies covering other liabilities and projects of Tradecontractor: provided, however, that any such policy or policies shall: (a) allocaxe to the Proj ect the full amount of insurance required hereunder, and (b) contain. permit or otherwise unconditionally authorize the waiver contained in Paragraph 15 of this Section 15.7. 15.3 EVIDENCE OF INSURANCE: As evidence of specified insurance coverage, Tradecontractor shall deliver and Builder will accept certificates issued by Tradecontractor's insurance carrier applicable t0 Builder and produce for review such policies in force for the specified period. Such evidence shall be delivered to Builder's cerporate office located at 12865 Pointe Del Mar, Suite 200, Del Mar, CA 92014, promptly upon execution of this Agreement or prior t0 commencement 0f work whichever occurs earliest. Each policy and certificate shall be subj ect to review by Builder and shall provide that such policy shall not be subject to material alteration to the detriment of Builder or Tradecontractor or cancellation without thirty (30) days‘ notice in writing to be delivered by registered mail to Builder's corporate office located at 12865 Pointe Del Mar, Suite 200, Del Mar, CA 92014. In no event shall Builder's review of Tradecontractor's certificates and insurance policies serve as any waiver and/or estoppel , in law or in equity, by Builder and/or Project Owner toward any breach by Tradecontractor of the specific insurance requirements set forth herein. In the cancellation section 0f the Certificate of Insurance the Tradecontractor shall delete the words “endeavor to“ and “but failure to mail such notice shall impose no obligation or liability of any kind upon the Company? its agents or representatives." Should any policy expire or be canceled before the expiration ofthis Agreement and Tradecontractor fails immediately to procure other insurance as specified, Builder reserves the right, but shall have no obligation, to procure such insurance and t0 deduct the cost thereof from any sum due Tradecontractor under this Agreement. Builder reserves the right to withhold payment should Tradecontractor fail to comply with 3.11 the insurance provisions described in this Paragraph 15. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontracto f ,xf x" x “7/ Builder w Am u 5/ V “M ‘ A Wfiwa a , 9r ‘ ”mm. Initials wj’efgggéw/ Date 4 xvfié’fl/ff Inmals «4» Date f3 3””,er f (K l, . . 'i’ . a ! .Edmon Dine: réé. 1 1/22/11 (docsb 18222 -bjh @ ms&1 ElSllarea'lCONSTLPURLACTII/F COJKMLWHYESIAJVIBROSIA - Glen Loma10f/Site -AmbrosiaUWa.s*tcr Contract DocsiEXHIBITA BOILERPLA TE_I.3I.JZ.docx 11 15.4 DAMAGES. Nothing contained in these insurance requirements is to be construed as limiting the tvpe. qualitv or quantity of insurance Tradecomractor should maintain 0r the extent of Tradecontractor‘s responsibility or liability fbr pavmerft of damages resulting from its operations under this AgTeement. The carrying of the insurance as specified herein shaill not be construed to be a limitation of liability on the part of the Tradecontractor, nor shall it relieve Tradecontractor from any liability under this Agreement as a matter of law. 15.5 AUTOMOBILE LIABILITY INSURANCE. Tradeconuactor shall maintain any and all owned, hired and non-owned automobile liability insurance covering all use of all automobiles, trucks and other motor vehicles utilized by Tradecontractor in connection with this Agreement with a combined single limit for bodily injury and property damage of One Million Dollars ($1,000,000), 0r limit carried, Whichever is greater. 15.6 WORKERS COMPENSATION INSURANCE. Tradecontractor shall maintain Workers’ Compensation Insurance. including (a) Employer's Liability at a minimum limit of One Million Dollars ($1,000,000) for all persons Whom it employs ifi can'ying out the work under this Agreement. Such insurance shall be in strict accordance with the requirements of the most current and applicable Workers' Compensation Insurance Laws in effect fiom time to time at the Project site. 15.7 WAIVER OF SUBROGATION. Tradecontractor hereby waives 3.11 rights of recovery whether by subrogation 0r otherwise, including but not limited to recovery because of deductible 0r Contractor Allocation clauses, inadequacy of limits 0f any insurance policy, limitations or exclusions of coverage, against Builder. Project Owner(s), the Project 1ender(s), the insurance program administrator, and their respective officers. directors, agents and employees, and any other contractors 0r tradecontractors which are insured under the BHIP at the time the loss occurs. or other individual or entity performing work or rendering services on behalf of Builder and/or Project Owner in connection with the planning. development and consn’uction of the Project that is the subject of the Contract Documents, other than contractors or tradecontractors which are not insured under the BHIP at the time the loss occurs. Tradecontractor shall also require that all in5urance policies obtained by Tradecontractor or its sub-tradeconrractors relating to any work pursuant to the Contract Documents shall include clauses'providing that each insurer waives any rights of recovery by subrogation, 01' otherwise, against Tradecontractor and the parties referenced above in this Subsection. Tradecontractor shall require similar written express waivers and insurance clauses fiom each 0f its sub-tradecontractors‘ This waiver by Tradecomractor shall apply whether or not Tradecontractor is an insured under the BHIP at the time such loss occurs. 15.8 AIRCRAFT LIABILITY INSURANCE. If the work involves aircraft. Tradecontractor shall maintain a combined single limit for bodily injury and property damage liability of not less than Ten Million Dollars ($10,000,000) per occun'ence, or limit carried, whichever is greater, covering owned and non-owned aircraft. The whole of the aircraft shall be insured as required by Tradecontractor or Builder. 15.9 RELATIONSHIP OF INSURANCE COVERAGE. The insurance required pursuant to This Section 15, shall, as far as applicable, specifically insure Tradecontractor's indemnity obligations pursuant t0 Sections 13 and 14, and, in particular and without limitation. the liability insurance required pursuant to Section 15 shall insure Tradecontractor's obligations pursuant to Sections 13 and l4. However, Tradecontractor's obligations pursuant to Sections 13 and 14 shall not be limited to the amount of insurance required of or carried by Tradecontractor pursuant to Section 15. 15.10 AUDIT RIGHTS. If Builder fails t0 enforce any of these insurance requirements, such failure shall not constitute a waiver 0f such requirements nor shall any waiver of any provision hereof be effective unless made in writing and signed by Builder. 15.11 SUB-TRADECONTRACTORS. Builder and/or Ovmer agrees to add sub-tradecontractors as insureds under the BHP pursuant to the terms, conditions, limitations and exclusions ofthat policy as in efiect fi'om time to time, With respect to the work performed pursuant to this Agreement provided that: (a) Tradecontractor is an insured under the BHIP, and Tradecontractor requires all 0f its tradecontractors to acknowledge, in writing, that all the provisions within this Section 15 are equally applicable to Tradecontractor‘s tradecontractors; and (b) Tradecontractor requires its tradecontractors t0 submit an accurate estimate of their costs savings as a result 0f being added t0 the BHIP, and Tradecontractor reflects such savings as part of Tradecontractor’s deductions for BHP insurance costs. 15.12 AUDIT RIGHTS. Upon three (3) days advance written notice, Builder shall have the right to audit Tradecontractor's books and records to determine the accuracy of Tradecontractor's reporting and payments relating to insurance coverage. SECTION 16: TRADECONTRACTOR'S PERMITS AND LICENSES. Except as otherwise expressed and provided in this Agreement, Tradecontractor m'll obtain all consents, approvals, licenses or permits required by any governmental authority having jurisdiction over the Project or any part thereof. including plans and specifications. The costs of all consents, approvals, licenses or permits and the payment of all fees relating thereto shall be paid by Tradecontractor except those as t0 which Builder has expressly agreed in miting either to obtain and pay for, or to reimburse deecontractor therefore. In jurisdictions where Builder has been required to obtain a master permit covering, in part, work to be performed by Tradecontractor, Builder may deduct the pro rata cost of Tradecontractor‘s portion 0f said permit fiom the contract pnce. SECTION 17: INSPECTION AND REINSPECTION. An authorized representative of the Tradecontractor will accompany Builder on any inspection tours which may be required by Builder or any governmental agency having jurisdiction thereof. Tradecontractor shall be charged for all re-inspections resulting fiom unacceptable materials and workmanship. SECTION 18: PREVENTION OF LIENS. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontractgy‘ / ' ,. Builder flf «"7 M . ’ M W .w “NM Initia1s «*fix/ Date @k Inmals fr”??? Date ,fwfi/ ax " x ,5 f Edition [ate' "av. I 1/22/11 (d0c#318222)/-bjh @ m5&l FHS/mr lflCON TLPURLACHVE CONIAWMVITIESIAJWBROSIA - Glen LomalOffsite - AmbrosiaLMaSrer ContractDocleXHIBITA BOILERPLA TE_I.3I.]2.(10CJ: 1’7 18.1 TradecomIactor agrees to pay when due all claims for labor and/or materials supplied or furnished hereunder. and to prevent the filing of any lien by mechanics or materialmen, or the institution of any attachments, garnishments or suits invoIVing the title of the prOperty upon which the improvements are erected. Tradecontractor agrees within five (5) days after receipt of mitten notice, by cemified mail or comparable means of delivery, to cause the effect of any such suit or lien to be removed from the premises, and in the event the Tradecontractor shall fail to do so, Builder is authorized to use whatever means it may deem best to cause said lien, attachment or suit, together with its effect upon the title, to be removed, discharged, compromised or dismissed. and the costs thereof, together with reasonable attorney's fees, shall become immediately due Builder. Builder shall be entitled t6 withhold 150 percent 0f all outstanding liens filed by Tradecontractor's tradecontractors and/or suppliers until appropriate Mechanic's Lien Release Bonds 0r recordable releases ofthe same have been provided to Builder. Tradecontractor may litigate any such lien 0r suit, provided it causes the effect thereof to be removed from the premises and executes and delivers to Builder such affidavits, contracts, bills, records, accounts, etc., as Builder may deem necessary for its protection in such event. 18.2 In the event Builder is served with any Writ of Attachment Writ of Execution, Notice of Levy (Federal or State), or other legal process for any debt or alleged debt of Tradecontractor at any time during the period of this Agreement prior t0 completion, Builder shall automatically be entitled to keep and retain any funds or monies then due Tradecontractor for work and materials filmished and/or previously billed and approved but unpaid to Tradecontractor. It is understood and agreed that the purpose of the preceding sentence is to guarantee that Builder shall have sufficient funds with which to complete Tradeconrractor‘s duties under this Agreement if the suit or 1evy out of which the above legal process arose should. in Builder's opinion, make it difficult or impossible for Tradecontractor to finish the work herein required. Service upon Builder of such process shall be deemed a breach of this Agreement and Builder shall give Tradecontractor five (5) days wn‘tten notice to remove said levy, and Tradecontractor's failure to do so shall entitle Builder to the same rights as set forth in Section 6 of this Agreement. SECTION 19: ASSIGNMENT OR SUBCONTRACTING. Tradecontractor shall not assign or subcontract any portion of this Agreement, or the proceeds thereof. without first obtaining permission in miting from Builder and then only subject to the provisions ofthis Agreement. SECTION 20: ATTORNEYS FEES. If either party to this Agreement institutes litigation or arbitration with the other pany. or against the surety of such party, arising out of the terms and conditions of this Agreement, or performance under this Agreement, the prevailing party shall be entitled t0 recovery from the other parry, 3.11 associated costs. including but not limited to, costs of investigation, court costs and all reasonable attomeys‘ fees incurred in good faith. Unless judgment goes by default, the attorneys' fees incurred by the prevailing party shall be presumed reasonable and shall be awarded. It is the intention of the parties to fully compensate the prevailing parry for all attomeys‘ fees paid or incurred in good faith, SECTION 21: SURETY BOND. If requested by Builder for any reason whatsoever, Tradecontractor further agrees that it will, within ten (10) days from written notification by Builder, provide Builder with a bend, conditioned upon faithful performance of this Agreement in all its particulars and/or a labor and material bond, duly executed with a surety company acceptable to Builder, as surety, and in form and content acceptable to Builder. Builder will reimburse Tradecontractor for the expense of such bond up to one percent (1 %) of the total contract price. If a bond is required and Tradecontractor fails or refuses to provide such a bond within ten (10) days after request, such refusal shall be sufficient grounds for termination as set forth in Section 6 ofthis Agreement SECTION 22: SUPERVISION. 22.1 The Tradecontractor, or its representatives. shall exercise full time general supervision in and over all phases of its operation to ensure correct performance of the Scope of Work. Builder, or its representatives, shall have access to any and all parts of the Tradecontractor's storage facilities, including but not limited to the construction grounds, and may at any time inspect, sample, test or require tests to be taken on any maten'als furnished or ordered to be used in the construction of the units described in the Contract Documents. 22.2 The Tradecontractor shall be resp0nsible to and answer directly to Builder, or its representatives: for the acts or omissions of its employees and 0f all persons directly or indirectly employed or retained by it in connection with its work under the Contract Documents 22.3 The Tradecontractor shall at all times respect the judgment and authority of Builder representatives acting in the capacity of Project Superintendent The Tradecontractor shall report to Builder representatives in vm'ting any and all criticism, materials shortages, labor trouble or other conditions or circumstances which in any way affect the performance of its duties or completion of the job. SECTION 23: PLANS AND SPECIFICATIONS. 23.1 Tradecontractor shall comply with all City, County and Federal ordinances, statutes, including all applicable building codes and functionality standards as set forth in Civil Code Sections 896 and 897, and shall also comply with all manufacturer specifications and requirements. T0 the extent there is any conflict between the plans and specifications. applicable building codes. engmeering reports and/or the functionality standards as set forth in Civil Code Sections 896 and 897, Tradecontractor \M‘ll perform to the strictest standard(s). No work is to be deemed complete until final inspection and approval by appropriate public agencies. as well as By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. H Tradecontracto ’ ‘ . ' r Builder Mm“ m,» ,. , “WM Initials ‘gM Daze 4%,éd/féflfl Initials ,x/m Date 5 “(3/79 ,f V, I/ fl \l I /’ r‘“ “(39‘9” Edition gm.- réiéi 11/22/11(doc#318222}”-bjh @ ms&1 F:1S/mrcd1 ONquPURMCTYVE COMMDWIHESkAMBROSM - Glen Lomalefxila - Ambrosiabmm'cr Contract DocskEXHIBITA BOILERPLA T£_1.3J. Ildocx 13 acceptance by Builder. Such acceptance and/or payment by Builder shall not bar any claim against Tradecontractor for defects in workmanship or materials 0r deviations from said plans. drawings or specifications or fiom said rules, regulations and requirements. Builder assumes no liability for failure of the plans and/or specifications to comply with any requirements, and it is cenclusively presumed that Tradecontractor is familiar with all of said requirements and that the work to be performed or the maten'als to be furnished hereunder by Tradecontractor are t0 be in strict accordance with said requirements, irrespective of the provisions of the plans and/or specifications. 23.2 Tradecontractor shall bear the entire expense of complying with this section of the Agreement and shall receive no extra or additional compensation therefore. 23.3 It shall be thel responsibility of the Tradecontractor to check all figures, measurements and any work of a prior Tradecontractor (contracted to perform the same Scope of Work) prior to commencing work. and any discrepancies apparent to him must be reported in writing to Builder immediately for adjustment. Failure to comply in this respect, and any additional costs resulting from noncompliance, shall be the responsibility of the Tradecontractor‘ 23.4 It shall be the responsibility ofthe Tradecontractor to submit for approval by Builder and/or its Architect any necessaly shop drawings, diagrams. samples, matefial lists, brochures. etc, at Tradecontractor’s sole expense. Said submittal shall conform t0 the Contract Documents. If the submittal deviates fiom the Contract Documents, it shall be the obligation of the Tradecontractor to give notice in writing t0 Builder of the deviation. In the absence of such notice, any approval by Builder or its Architect of a submitted which deviates from the Contract Documents shall be void at the sole discretion of Builder and the Tradecontractor shall be responsible to Builder to bring its work into compliance with the Contract Documents and for any cost or damage which results fiom the deviation. SECTION 24: QUALITY? MATERIALS AND WORKMANSHIP. 24.1 Whenever any manufactured article, implement or sen’es of articles or implements is mentioned in the specifications by name, trade 0r manufacturer's name, it is intended to establish a standard of merit and quality. The intent of this definition is to require quality materials and workmanship; however, substitutes of equal men't may be used by the Tradecontractor, but only upon the written consent of Builder or its authorized representative. Under no circumstances shall a substitute material be used which will not conform to requirements set forth in the Contract Documents. 24.2 It is the responsibility of the Tradecontractor to inspect all materials for manufacturer's defects 0r transport damage prior to installation. A11 defective or damaged materials will be rej ected. Upon the completion of each unit, Tradecontractor shall inspect all work perfonned and repair immediately any and all unacceptable workmanship. Tradecontractor shall notify Builder or its representative of the completion of each unit and Tradecontractor will repair or replace any worlqnanship or materials Builder deems in its sole discretion unacceptable. SECTION 25: CHANGES TO PLANS AND SPECIFICATIONS. 25.1 Should any changes to the plans and the specifications be required after the signing 0f the Contract Documents, it shall be the responsibility of the Tradecontractor to advise Builder in wn'ting of the effects upon its portion of the work under this Agreement. The Tradecontractor shall perform no additional work nor shall it decrease its obligation under the Agreement without the mitten consent of and compensation adjustment fiom Builder. In the event of any dispute arising between Builder and Tradecontractor over the value of enra work or whether certain work is "Extra" or within the scope of this Agreement, it shall be the obligation of Tradecontractor t0 complete the disputed work under protest. Any refusal to perform disputed work shall constitute a material breach 0fthis Agreement authOrizing Builder to resort to its remedies set forth in Section 6 of this Agreement. 25.2 In the event the Tradecontractor proposes a change or deviation from the plans and specifications and Builder agrees With the proposed change or deviation, it shall be the obligation of the Tradecontractor to indemnify Builder for any increased costs incurred by a Builder as a result of any such change or deviation proposed by Tradecontractor including. but not limited to, architectural or engineering fees. SECTION 26: GUARANTEES. 26.1 Tradecontractor does hereby expressly guarantee the Owner, Builder, and their successors in interest in the work. against any loss or damage arising from any defect in materials filmished or workmanship performed under or pursuant to this Agreement for a period coterminous with Builder’ responsibility to its successors in interest, whether express or implied by law. Tradecontractor acknowledges that it is familiar with and has reviewed the Builder's homeowner Fit and Finish Limited One-Year Warranty and is aware that it is available in Builder's corporate office for review. A longer period may be required by applicable law; in which case the guarantee period shall correspond with the guarantee required by applicable law. In no event, however, shall the guarantee period be less than one (1) year from the date ofthe close of escrow. 26.2 It shall be the reSponsibility ofthe Tradecontractor, during construction of all phases ofthe Project, to contact Builder or its representative daily to receive any and all notices of discrepancies. The Tradecontractor shall immediately arrange for the correction of any and all such discrepancies and shall notify Builder upon completion of the work necessary to correct the discrepancy within two (2) business days after notification. Payments may be withheld pursuant to Section 2 until such time as the discrepancies are eliminated. If the Tradecontractor does not act promptly to correct such deficiencies, Builder may independently arrange for the correction of any and/or all such discrepancies and for payment of the cost thereof. Builder shall have the right to back charge such costs or setoff the amount thereof against any sums owing Tradecontractor hereunder or project on which the Tradecontractor performed work and during the guarantee periocL to correct any and all discrepancies and defects in workmanship and/or materials performed or supplied by Tradecontractor on the work of construction, within five (5) business days By executing this Master Tradecontract Agreement and inifialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradeconw {7/ /¢,.,J,.«« Builder . ff um WWW Initials v, Date (fig A4?” Initials wjfx .x Date j ”é? vi;.7 V [fr // \J tr43‘ {I . . . / . Edztzon gateI/ra '. 11/22/1 1(doc#318222 -bjh @ ms&l F:1SImred1CONS71PUR1ACTIVE COMMUNITIEMVIBROSIA ~ Glen LomaIOffsite - AmbrosialMasIer Contract DocstEXHTBITA BOILERPLA TE_I.31.12.tIowc 14 after. notification of such discrepancies and defects by Builder unless Tradecontractor is notified of a claim as set forth in Secugns 14.2 through 14.16. Tradecontractor shall notify Builder immediately upon completion of work performed or materials supphed pecessary to eliminate the discrepancies and defects. Should the Tradecontractor fail to comply with the Builder discrepancy m_mce Wlthlin five (5) business days after notification, Builder may independently arrange for the correction of anv and/or a1] such dlscrepanmes and the Tradecont'ractor shall reimburse Builder for the cost thereof. Builder shall have the right to'back charge such gost; or setoff the amount thereof against any sums owing Tradecontractor hereunder or arising out of other projects or phases of this rolect. 26.3 Nothing contained in Sections 26.1 through 26.2 shall limit Tradecontractor's liability to Builder as provided for in Sections 13 and 14. SECTION 27: WARRANTY. 27.1 .degconnactor agrees to perform all work in a first class. workmanlike manner. At a minimum, all work should meet the funcponahty standards 0f Civil Codes Section 896 and 897 and be equal to the HUD/FHA Minimum Property Standards, in accordance mth all Municipal, County and Stale Building Codes, and in accordance with the terms and conditions as outlined in {he contract documents. 27.2 Tradecontractor expressly warranties its work shall be fies of any defects in materials and workmanship for all applicable wan'anty periods as set forth 1'11 Civil Code Sections 896 and 900. This warranty shall be in addition to all other rights and privileges which the Builder may have under any other law. Neither final payment nor any provision in the Contract Documents shall relieve the Tradecommctor 0f responsibility for faulty materials or workmanship. 27.3 Within sixty (60) days of signing this Agreement, Tradeconu'actor shall provide to Builder all xxrarranties for manufactured products that Tradecontractor is obligated to install as part of its scope ofwork as set forth herein. SECTION 28: NOTICES. Any and all notices or other communications required or permitted by this Agreement or by law to be served on, given to or delivered to either party hereto (Builder and Tradecontractor), by the other party shall be in writing and shall be deemed duly served, given or delivered when (i) personally delivered to the party to whom it is addressed; (ii) deposited in the U.S. Mail. first class postage prepaid, addressed to Builder or Tradecontractor at the addresses herein before set forth; or (iii) sent by telegram to Builder or Tradecontractor at the addresses hereinbefore set forthA SECTION 29: MISCELLANEOUS. 29.1 Tradecomractor funher agrees to hold Builder and the Owner and their officers. directors, agents and employees harmless from any expense of any nature arising out of any and all claims (including, but not limited to, claims that may be presented by virtue of any contract or employment under the Tradecontractor) for union welfare, pension, vacation, apprenticeship. owner-operator. health and welfare. and related types of payment obligations connected with the job herein referred to, whether or not well-founded. 29.2 In addition to the provisions and remedies contained in Section 6,. or any other provisions hereinbefore stated, Builder may terminate this Agreement with the Tradecontractor or its tradecontractors (and the Tradeconrractor shall so provide in contracts with its tradecontractors), in the event that the Tradecontractor or its Tradecontractors are listed by the administrative office of the appropriate health and welfare, pension, vacation or apprentice funds as being delinquent in payment, or payments, to said fund or funds regardless of the job in connection with which the alleged delinquency occurred (which termination shall be considered "for cause”). If this Agreement is terminated pursuant to this provision, Tradecontractor shall be obliged to pay the entire cost of completion of work called for by this Agreement and/or tradecontractor contract(s) whether Builder has said work completed on a time and material basis or lets a new contract for completion ofthe work. If Builder elects not to terminate, pursuant to this provision, Tradecontractor appoints Builder (and Tradecontractor shall similarly bind his tradecontractoxs to do so) as Tradecontractor's agent to otherwise be required to pay to Tradecontractor. Builder‘s determination as to amount(s) to be paid, if any, shall be final. 29.3 The Contract Documents should be considered complimentary to each other. and what is called for in one shall be binding and enforceable as if called for in all. 29.4 The term "Tradecontractor" refers to the firm 0r individual, or series of individuals, or corporation, who is obligated to perform the obligations set forth in any phase ofthe Agreement so endorsed by it or under its power of attorney. 29.5 If any provision of this Agreement, or portion thereof, is determined by a court to be invalid. that determination shall not serve to invalidate the remainder of this Agreement or the remainder of provisions. 29.6 This Agreement shall be construed and enforced in accordance with the laws of the State of California 29.7 There are no understandings or agreements except as herein expressly stated. Time is of the essence for this Agreement. This Agreement shall not be interpreted for or against either party, but in accordance with its fair meaning. No court has the power or discretion to do anything other than to enforce the plain meaning of each contract provision. N0 legal theory shall or may ever be applied to avoid, circumvent or "get around" the plain meaning ofthis Agreement. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. Tradecomractgy’ ,«x’ f Builder m , WM Initials JK‘EM/ 2 Date Zzfif/fi /% 'fl Initials Kw Date mfiflj’kffifwf J ‘ .vx‘w” 4.! fig: /" Edition (ate: 'ev. I 1/22/1 I(doc#318222) -bflz @ ms&l F:LSlmre CONSTIPURMCTIVE COMMUNITYESMMBROSM - Glen LomaLOffsiIe - AmbrosialMaster Contrac! DacsLEXHIBITA BOILERPLA TE_I.3I.I2.docx 15 29.8 Tradecontractor‘s Agreement not to Contract: The parties aclmowledge that Tradecontractor may come into contact with Owners of specific lots. Tradecontractor agrees that Tradecontractor or Tradecontractor‘s employees. agents or representatives shall not contract directly with any prospective or current homeowner prior to close of escrow of Builder’s homes. Tradecontractor fumher aclmowledges that violation of this provision is grounds for termination as is defined in Section 6 herein. SECTION 30: ARBITRATION. 30.1 If any dispute shall an’se between Builder and/or Owner and the Tradecontractor pertaining in any manner to the construction or interpretation of this Agreement. or to the rights or obligations of the parties hereunder, or to the breach hereof which the parties are unable t0 settle by mutual agreement, Builder anwor Owner shall have the exclusive option either t0 have the dispute determined by court 0r by mediation and/or arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Builder and/or Owner shall exercise said option by commencing a court action or by commencing an arbitration proceeding. If Tradecontractor first commences a court action with respect t0 a dispute which Builder and/or Ovmer desires to have determined first by an arbitration proceeding or if Builder and/or Owner desires to have first determined by court action. Builder and/or Owner shall have the right to have said court action or arbitration proceeding stayed if Builder and/or Owner promptly shall commence the arbitration proceeding or court action desired by Builder and/or Owner. Judgment upon the award in any arbitration proceeding may be entered in any court havingjurisdiction thereof. The prevailing party (as determined by the court or arbitrator(s)) shall be entitled to reasonable attorney fees from the other party in an amount to be fixed by the com or arbitraxor(s). The arbitrator(s) in any arbitration proceeding shall have the right to allocate fees between the parties or to charge all of such fees t0 one party, as the arbitrator(s) shall deem to bejust. Without limitation upon the foregoing paragraph, in the event of a claim by a third party against Builder and/or Ovmer, the Owner and/or Tradecontractor arising out of or related to construction, design or engineen'ng of any portion of the Project, or personal injury or property damage for which the Tradecontractor may be liable and the third party claim is submitted to arbitration, then Tradecontractor hereby agrees to participate in said arbitration proceeding and t0 be bound by the findings of such proceeding. Should Tradecontractor refuse or n'jgglect to participate in any arbitration proceeding, the arbitrator is empowered to decide the controversy in accordance with the evidence presented. 1n the event any such dispute involves any one or more of Builder and/or Owner's other tradecontractors, Builder and/or Owner and Tradecontractor herein shall take such steps as necessary t0 consolidate their respective claims with those of such other tradecontractor(s) (and the third party claimants) in a single arbitration proceeding so that the rights and liabilities of the third parry claimants, Builder and/or Owner and Builder and/or Owner‘s tradecontractors may finally be resolved by a single proceeding. By executing this Section 30: Arbitration, and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecon‘traggyr r)“ j/ I Builder KN f mm Initials :M/ Date ff”? Initials “C “S Date § WK," n” I/I 9W f; “I x n/ TRADECONTRACTOR NA‘WIE: BUILDER NAME: BROOKFIELD NORCAL BUILDERS INC ., gm” (/4, £553“ 4:: “/13???” MM_f/éfwwfifl (24¢ V By: ”??figé QM”: “’“ ‘ K32? ?Signgt’uw’ Signature z/ 4T” y gBy: ixé‘b‘7‘fo w?" i W, By: Mark Saracco Pg‘im Name Prim Name Title: Fafiy91¢%“ Title: Vice President of Operations & Purchasingw . y . Date: W§é’//fww Date: gm: g?” 712 ”m License No.1 g77£73 License No.2 959107 By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecontracwr fl.“ Builder M» ~ ‘ am“ Lnitials M Date fifi/{r Initials “fig“ Date jmkfixfi/J Edition $116: rev. 11/22/11 (doc#318222) -bjh @ ms&l F:1SllaredhC0‘\'SflPURL/4CTIVE COMMDUVITYESWWBROSIA - Glen LomaiO/fsite - AmbrosiaLMayrer Contract DocsLEXHIBITA BOILERPLA TE_I.3]. Jldocx 16 Exhibit “B” Scope of Work Storm Drain GENERAL PROVISIONS: a. All work shall be in accordance to the plans‘and specifications by: b. Civil Engineer: Ruggeri-Jensen-Azar & Associates c. Soils Engineer: Earth Systems Pacific d. Joint Trench Design: NA e. Landscape Architect: Van Dom Abed Landscape Architects, LLC. f. City of Gilroy g. County of Santa Clara 2. This agreement is the only Agreement between Contractor and Subcontractor with respect t0 the work described herein. No representations, prior agreements or specifications shall be valid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. 3. Subcontractor agrees t0 complete the work in accordance with the grading plans, improvement plans, utility plans, landscape plans, specifications, and soils & geotechnical report as approved by all applicable governing agencies. 1f there is discrepancy between any of these documents, the most stringent requirement shall govern. 4. All material shall meet or exceed the requirements of the applicable governing agencies. 1f improper or substandard material is used on the job site, whether accepted by Contractor or not, upon discovery, Subcontractor shall correct or remove all substandard work or material within five (5) working days at Subcontractor‘s expense. 5. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid propose! quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER 0R PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. All EXTRA WORK requires submittal of DAILY TIME CARDS to Land Development Manager, for approval in writing, at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) plus 10%. 6. Any work done beyond the lines and grades, as shown on the plans, will be considered as unauthorized and shall not be paid for without prior written consent 0f Contractor. No Excegtions. 7. Prices shall remain in effect through completion of proiect. Contract includes move- ins as may be required. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages 0n account 0f any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension oftime to perform. 8. Invoicing of any Contractor approved “extra”work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no later than 45 calendar days after work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. 9. Subcontractor shall provide to Contractor a complete list of all Subcontractors’ sources of material for the work to be performed for Contractor. If Subcontractor purchases material from any other supplier for use on the Contractor’s job, Contractor shall be notified, in writing, within 24 hours after purchase. Subcontract, «f // f Page1of6 Builder M ” ”1.. r ”M Initials x”, ”gmete £2? /§ Initialsfl Date j 6&1”? [ff ti”, (x Subcgntractor agrees that Contractor may communicate with any material supplier to verify that its bills to Subcontractor have been or are being paid, and may request that the supplier notify Contractor if any bills are not being paid. 10. Subcontractor shall proceed with aIE phases of its work under the direction of the Contractor’s Land Development Manager. Ali work must be to the complete satisfaction of Contractor and be in accordance with the requirements of all applicable governing agencies having jurisdiction. 11. Prior to the beginning of work there will be a preconstruction meeting held at the job site at a time to be specified by Contractor’s Land Development Manager. Representatives of the civil engineer, soils engineer, and governing agencies will meet with the Subcontractor to review the proposed work and the schedule. 12. In order to expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. 13. Subcontractor agrees to comply with all federal, state and local safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction of the project, including safety of all persons and property, and that this requirement shall apply continuously and not be limited to normal working hours, and the Subcontractor shall defendj indemnify, and hold harmless the Contractorfrom any and all liability, real or alleged, in connection with the performance of work 0n this project, excepting for liability arising from the sole negligence of Contractor. 14. Excavation of trenches shall be in conformance with the specifications and requirements of all applicable governing agencies. Subcontractorfurther acknowledges by its signature hereon that he has read “Safety Orders” dealing with excavation and trenches and agrees to make its field personnel fully aware of its content and it will ensure that there is adequate supervision of the project so that all trenches and excavations are made safe in full compliance with these safety requirements. 15. it shall be the responsibility of Subcontractor to request and schedule all his job inspections and obtain a II{final acceptance in letter form from ail applicable governing agencies soils and civil engineers so that Contractor may obtain release of bonds and make retention payments to Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor 0r work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. 16. it is the responsibility of the Subcontractor t0 provide a competent English speaking foreman on site at all times. The Subcontractor’s foreman is required to walk all inspections with the city inspector or any other governmental agencies having jurisdiction Contractor reserves the right to have subcontractor s foreman or any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. 17. Subcontractor shall ensure that all its employees SHALL NOT use obscene language, play music loudly or consume alcoholic beverages or drugs of ANY KIND on Contractors property. 18. Subcontractor and its employees shail observe all speed limits at or near Contractor’s job site. PARTICULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 M.P.HA 19. Subcontractor shall pay for ali construction water for its use only. It will be the responsibility of Subcontractor to arrange for water service inciuding, but not limited to, hydrant meter, fees and water truck service. 20. At all times during construction and until completion of its work, Subcontractor, when it or its subcontractors are operating equipment on the site shall prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work In such a manner that will confine dust particles to the immediate surface of Subcontracwr Page 20f6 Builder m, 9" m, w (WM Initials g3: Date 5:5 “é; Initials"fl Date SAT?“ 4‘?" the work. Subcontractor shall be responsible for any damage done by dust from its activities in performing work under its contract. The prices for the various items of work shall cover dust control satisfactory t0 the applicable governing agencies and Contractor’s requirements. Ifthis requirement is not met, Contractor shall have the right to maintain dust control and backcharge the Subcontractor. 21. Subcontractor is solely responsible for its material and equipment left on the job site and shall provide its own security. 22. Subcontractor shall be responsible for the damage or breakage of its work or of other subcontractors’ work, or Contractor’s work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost of repairing or replacing such broken or damaged work. Subcontractor shall take adequate steps to protect its work from breakage or damage If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. 23. Two (2) sets of “as built” drawings shall be included in this contract. This record shall be updated daily by the subcontractor and is to be available at the job site for review by Contractor’s field representatives. At the end ofthe job, one complete set of these records shall be turned over to the Contractor prior to release of any retention. 24. If the Subcontractor in the course of the work finds any discrepancy between the plans and physicai conditions in the field, of any errors or omission in the plans in the layout of the survey stakes, and or in instruction given he shali immediately inform the Contractor’s Engineer. The Contractor and Contractor’s Engineer is not responsible for errant construction resulting from the construction process proceeding blindly from stakes and or plans without cross-referencing between the two. The Subcontractor shaii conduct routine checks prior to and during construction and shall have plans available at the job site at all times. Any time the Subcontractor doubts the reasonableness or correctness of an element in the plans or field control staking, he shall contact the Contractor’s Engineer for clarification or confirmation. The Contractor’s Engineer will endeavor to respond to any such inquiry made in good faith on a highest priority basis, and will d0 so free of charge to either the Contractor or the Subcontractor even if there is no error or omission. Any work done after such a discovery, until the probiem has been remedied 0r dispelled, shall be done at the Subcontractor’s risk. 25. Subcontractor shall take particular care while working near adjacent properties. Extreme care shall be taken when working around existing facilities. Subcontractor shall be responsible for repairing or replacing existing improvements damaged by him or his Subcontractor or material suppliers. Subcontractor and his Subcontractors will be responsible when hauling any earth, sand, gravel, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal of such debris deposited upon said public or private property shall be the Subcontractor’s responsibility. 26. The Subcontractor shall take every precaution not to damage trees shown on the plans to remain. The Subcontractor will be held responsible for any monetary or other damages suffered by the Contractor. 27. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor’s Authorized Representative will provide Subcontractor with a construction schedule. The construction schedule shall set forth the Start Date as well as the date for Completion and any intermediate milestones. Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees to immediately proceed in accordance with the amended construction schedule. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start of the Work by Subcontractor. Upon receipt of such notice, Subcontractor shall begin the Work within 24 hours and shall execute the Work in a prompt and diligent manner and shali complete the work in accordance with the time designated in the Construction Schedule. Subcontractor acknowledges that time is of the essence of this contract. Contractor may establish specific requirements or schedules for the pace and rate of performance of the Work. Subcontractor acknowledges that Contractor is re1ying on Subcontractor’s ability to perform the Work at the pace or rate established by Contractor. Subcontrapfmf 5/7 / v Page30f6 Builder “M M“ w m wm\ Initials (”’M Date x fifi/A/ Initials ““29”? Date cf “4’3“”! ”*1" :3"! ix, I / f, Subcontractor agrees that it shall not proceed with any part of the Work ahead of time designated by Contractor without written authorization. In order to expedite the completion of the Project or the Work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it wiII work overtime as directed by Contractor and that Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it wil! not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractor’s Authorized Representative. Subcontractor shall not be entitled to recover from Contractor any additional compensation 0r damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension of time to perform. 28. If Subcontractor is behind in the Work 0r any portion to the Work is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right to direct Subcontractor, on forty-eight (48) hours notice, to furnish additional labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. If such additional labor is not available, Contractor has the right to require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) to such an extent will be sufficient to complete the Work or any portion of the Work in accordance with the construction schedule. 29. Subcontractor shall adhere to all requirements of the General Construction Activity Storm Water Permit and be responsible for its enforcement by their employees and anyone working under their control. Subcontractor shall be responsible to practice best management practices per the Regional Water Controi Board and per project erosion control plan. 30. In the event any portion 0f the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost of protection and/or repair of Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shall be practiced per the governing agencies and the Regional Water Quality Control Board. Subcontractor shall be further responsible for damage to adjacent properties or improvements as a result of his not protecting such areas from storm water flowing out of his work area. 31. Subcontractor must supply and maintain all traffic control devices required for all pubiic convenience and public safety as specified by the State of California “Manual of Traffic Controls” and the governing agency. Subcontractorshall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain all safety devices including shoring and shall be responsible for conformance to all tooal, state, and federai safety laws and regulations. Trenches will not be left open overnight in City Streets. 32. Subcontractor acknowledges that he has thoroughly familiarized himseif with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance will be made to cover any costs in excess of the LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or letter initiated by the project manager prior to the start of extra work. All Extra Work will require submittai of Daily Time Cards to the project manager for approval at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the subcontractor’s standard rental rate sheet discounted 5%. Material prices for extra work shali be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor no later than 45 days after the work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. 33. The unit prices for each item of work are to be used to determine the value ofthe work completed for progress payments and for determining possible changes in the Subcontracto ,x Page4of6 Builder W *“ W g WM, Initials ?%j’é/ff/Date fifi/fé’” Initials Wiwfig Date f w???“ 34. 35. 36. 37. 38. 39. contract amount resulting from changes in drawings, specifications, or scope of work. Sgbcontractor shaH be responsible to contact underground services alert (U.S.A.) prior to any trenching operation. The project superintendent shall be given a copy of the control number issued by U.S.A. Subcontractor shall verify the locations of all existing underground utilities. Locations shown on the plans are approximate and shown for general information only. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer or reproductive toxicity, and a written statement must be on file with Contractor prior to any payments being made under this Subcontract Agreement. It shali be the subcontractor’s responsibility to keep all adjacent streets clean of mud/debris etc. Should Contractor find it necessary t0 have third party clean streets, Subcontractor shall bare all costs. Subcontractor is solely responsible for his material and equipment Ieft on the jobsite and shall provide his own security. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. This shali include cost of all rechecking and testing for certification that did not reach designed tolerance at first inspection. Should any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC INCLUSIONS INCLUDING BUT NOT LIMITED TO: Storm Drain 1. Sub Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set of finish C/G stakes for rock and concrete, and one set of complete underground stakes. The cost of any restaking or additional grade stakes ordered by Subcontractor will be charged to Subcontractor by Brookfield Homes. The underground Subcontractor shall include the costs of all imported backfil] material that may be required by the Public Agencies having jurisdiction according to their standard specifications. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. No claim for extra payment wil! be allowed for difiicuity in trenching because of water. Subcontractor is responsible for the design and shoring of trenches in accordance with all applicable occupational safety laws Cost for this shall be included in unit prices for various items of work. No additional compensation shall be made. Subcontractor is responsible to review the plans and site of work to determine the extent of pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items 0f work and no additional compensation shall be ailowed therefore. The underground Subcontractor shall commence construction from the low end of all gravity lines_ Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shall be responsible to remedy the situation at his own cost and no additional compensation shall be allowed therefore. All underground spoils not within the area being graded for the Tract street improvements shall be the responsibility of subcontractor. Subcontractor is to knock down his trench spoil in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. contrficmrr/ MM Page 5 0f 6 Builder M «a m, a f WWW lnitialsfi’L/géDate %2@ 2% Initials ":33? Date «SN’Z’V "3” é" 7 / 9. All water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE SYSTEM, UNLESS IT IS BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. 10. Lots in this development have been finish graded t0 Civil and Soils Engineering certification. Subcontractors using these lots for storage of materials will be responsible for the cost of all cleanup and restoration t0 a finish lot configuration. If It is found the lots are out oftolerance and recertification is required, those costs wiil be charged to Subcontractor by Brookfield Homes. 11. No asphalt rock, concrete, or rubble is to be left on the site or buried. 12. In the event any portion of the work should become inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. 13. Subcontractor agrees t0 install his portion of work to within a tolerance of +/-.1O of one foot (1’). Brookfield Homes will have its Engineers check any or ali Subcontractor’s work and/or installation and if it is found that Subcontractor’s work is not t0 a tolerance 0f +/-.1O of one foot (1 ’), subcontractor will immediately return to the jobsite and correct, replace and/or re-execute faulty or defective work. Subcontractor further agrees that after Brookfield Homes engineer’s first Check of his work and/or installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractor’s and/or installation will be paid for by the Subcontractor until the work and/or installation are to the satisfaction of Brookfield Homes, it’s Engineers and all governing agencies. 14. All excess material used in installing underground system will be removed from the jobsite at the times of completions of work. 15. Excavations shall be adequately shored, braced and sheeted so that the earth will not slide or settie and so that all existing Improvements of any kind will be fully protected from damage. Any damage resulting from a lack of adequate shoring, bracing and sheeting shall be the responsibility ofthe Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth, the subcontractor shall provide adequate sheeting. Sharing and bracing or equivalent method. 16. The underground Subcontractor shall be responsible for the installation of storm drain facilities. He shall also be responsible for lowering new and previously existing manholes, etc. to below sub grade leveE for completion of finish grading, rocking and paving and raising same to finish grade, including all patch paving necessary for acceptance. 17. Al! manhole cones at the time of installation shali be topped off by a good cleated (four each cleated minimum) temporary 5/8” minimum steel plate and covered over with dirt to a minimum of 8” below finished subgrade or to a maximum allowed by City and/or County, Sanitary or Storm District. Finished rings and covers are to be installed prior to finishing paving. Manhole Castings will be raised to grade. 18. Raise and patch paving around manholes is included. Subcontractor shall, compiy with Cal Trans specifications of 1/8” in 12’ of toEerance to the existing roadway surface Cal Trans manual. Section 39.6. 19. All area drains are inciuded. / “ / ,» V Subcontrag: 7 / w“ Page 6 of 6 Buuder W, v7 W mmInitials x"? / Date éW/«éfif Initials "7’0 Date fwfl'zw f/ f f Exhibit “B” Scope of Work Sanitary Sewer GENERAL PROVISIONS: a. All work shall be in accordance to the plans and specifications by: b. Civil Engineer: Ruggeri-Jensen-Azar & Associates c. Soils Engineer: Earth Systems Pacific d. Joint Trench Design: NA e. Landscape Architect: Van Dom Abed Landscape Architects, LLC. f. City 0f Gilroy g. County of Santa Clara 2. This agreement is the only Agreement between Contractor and Subcontractor with respect to the work described herein. No representations, prior agreements or specifications shall be valid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. 3. Subcontractor agrees to complete the work in accordance with the grading plans, improvement plans, utiEity plans, landscape plans, specifications, and soils & geotechnical report as approved by all applicable governing agencies. If there is discrepancy between any ofthese documents, the most stringent requirement shall govern. 4. All material shall meet or exceed the requirements of the applicable governing agencies. if improper or substandard material is used 0n the job site, whether accepted by Contractor or not, upon discovery, Subcontractor shall correct or remove all substandard work or material within five (5) working days at Subcontractor’s expense. 5. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER OR PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. All EXTRA WORK requires submitta] of DAILY TIME CARDS to Land Development Manager, for approval in writing, at the end of each clay as the work is executed. AH prices for extra work on daily time cards for labor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) plus 10%. 6. Any work done beyond the lines and grades, as shown on the pians, will be considered as unauthorized and shall not be paid for without grior written consent of Contractor. No Exceptions. 7. Prices shall remain in effect throuqh completion of proiect. Contract includes move- ins as may be required. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages 0n account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension of time to perform. 8. Invoicing of any Contractor approved “extra"work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no later than 45 calendar days after work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. 9. Subcontractor shall provide to Contractor a complete list of all Subcontractor’s sources 0f material for the work to be performed for Contractor. If Subcontractor purchases material from any other supplier for use on the Contractor’s job, Contractor shali be notified, in writing, within 24 hours after purchase. Subcontractor agrees that Contractor may communicate with any material supplier to verify that its f / x . Subcontr 4 r / $4M” Page1of6 Bmlder fl, x J NInitials "”1425 x, Date 575%??? Initials r533 Date WLEWW“ [f I , , / bills to Subcontractor have been or are being paid, and may request that the supplier notify Contractor If any bills are not being paid. 10. Subcontractor shall proceed with all phases of its work under the direction of the Contractor’s Land Development Manager. All work must be to the complete satisfaction of Contractor and be in accordance with the requirements of all appiicable governing agencies having jurisdiction. 11. Prior to the beginning 0f work there will be a preconstruction meeting held at the job site at a time to be specified by Contractor’s Land Development Manager. Representatives of the civil engineer, soils engineer, and governing agencies wiil meet with the Subcontractor to review the proposed work and the schedule. 12. In order to expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. 13. Subcontractor agrees to comply with all federal, state and local safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction of the project, including safety of al! persons and property, and that this requirement shall apply continuously and not be limited to normal working hours, and the Subcontractor shall defend, indemnify, and hold harmless the Contractor from any and all liability, real or alleged, in connection with the performance of work on this project, excepting for iiability arising from the sole negligence of Contractor. 14. Excavation of trenches shall be in conformance with the specifications and requirements of all applicable governing agencies. Subcontractor further acknowledges by its signature hereon that he has read “Safety Orders” dealing with excavation and trenches and agrees to make its field personnel fully aware of its content and it will ensure that there is adequate supervision of the project so that all trenches and excavations are made safe in fuil compliance with these safety requirements. 15. It shall be the responsibility of Subcontractor to request and schedule all his job inspections and obtain all final acceptance in letter form from all applicable governing agencies, soils and civil engineers so that Contractor may obtain release of bonds and make retention payments to Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. 16. It is the responsibility of the Subcontractor t0 provide a competent English speaking foreman on site at ail times. The Subcontractor’s foreman is required to walk all inspections with the city inspector or any other governmental agencies having jurisdiction. Contractor reserves the right to have subcontractor’s foreman or any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. 17. Subcontractor shaH ensure that all its employees SHALL NOT use obscene language, play music loudly or consume alcoholic beverages or drugs of ANY KIND on Contractors property. 18. Subcontractor and its employees shall observe all speed limits at or near Contractor’s job site. PARTJCULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 MPH. 19. Subcontractor shall pay for all construction water for its use only. 1t will be the responsibility of Subcontractor to arrange for water service including, but not limited to, hydrant meter, fees and water truck service. 20. At all times during construction and until completion 0f its work, Subcontractor, when it or its subcontractors are operating equipment on the site, shall prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work in such a manner that wiil confine dust particles to the Immediate surface ofthe work. Subcontractor shall be responsibie for any damage done by dust from its Subcontractg/ z/ // ”M” PageZofS Builder ‘ w , I ”Wm Initials 11/ Date @H éf Initials ”Jfififi Date fl§§w{M f". 5' f f, / /’ 21. 22. 23. 24. 25. 26. 27. activities in performing work under its contract. The prices for the various items of work shall cover dust control satisfactory to the appiicable governing agencies and Contractor’s requirements. if this requirement is not met, Contractor shall have the right to maintain dust control and backcharge the Subcontractor. Subcontractor is solely responsible for its material and equipment left on the job site and shali provide Its own security. Subcontractor shall be responsible for the damage or breakage of its work or of other subcontractors’ work, or Contractor’s work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost 0f repairing or replacing such broken or damaged work. Subcontractor shall take adequate steps to protect its work from breakage or damage. If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. Two (2) sets of “as built” drawings shall be included in this contract. This record shall be updated daiiy by the subcontractor and is to be available at the job site for review by Contractor’s field representatives. At the end of the job, one complete set of these records shall be turned over to the Contractor prior to reiease 0f any retention. If the Subcontractor in the course of the work finds any discrepancy between the plans and physical conditions in the field, of any errors or omission in the pians in the layout ofthe survey stakes, and or in instruction given he shall immediately inform the Contractor’s Engineer. The Contractor and Contractor’s Engineer is not responsible for errant construction resulting from the construction process proceeding blindly from stakes and or plans without crossweferencing between the two. The Subcontractor shall conduct routine checks prior to and during construction and shall have plans available at the job site at all times. Any time the Subcontractor doubts the reasonableness 0r correctness of an element in the pians or field control staking, he shall contact the Contractor’s Engineer for clarification or confirmation. The Contractor’s Engineer will endeavor to respond to any such inquiry made in good faith on a highest priority basis, and will do so free of charge to either the Contractor or the Subcontractor even if there is n0 error or omission. Any work done after such a discovery, until the problem has been remedied or dispelled, shall be done at the Subcontractor’s risk. Subcontractor shall take particular care while working near adjacent properties. Extreme care shall be taken when working around existing facilities. Subcontractor shall be responsible for repairing or replacing existing improvements damaged by him or his Subcontractor or material suppliers. Subcontractor and his Subcontractors will be responsible when hauling any earth, sand, gravel, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal of such debris deposited upon said public or private property shall be the Subcontractor’s responsibility. The Subcontractor shall take every precaution not to damage trees shown on the plans to remain. The Subcontractor will be held responsible for any monetary or other damages suffered by the Contractor. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor’s Authorized Representative will provide Subcontractor with a construction schedule. The construction schedule shalt set forth the Start Date as well as the date for Completion and any intermediate milestones Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees to immediately proceed in accordance with the amended construCtion schedule. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start ofthe Work by Subcontractor. Upon receipt of such notice, Subcontractor shall begin the Work within 24 hours and shalt execute the Work in a prompt and diligent manner and shail complete the work in accordance with the time designated in the Construction Scheduie. Subcontractor acknowledges that time is of the essence of this contract. Contractor may establish specific requirements or schedules for the pace and rate of performance 0f the Work. Subcontractor acknowledges that Contractor is relying on Subcontractor’s ability to perform the Work at the pace or rate established by Contractor. Subcontractor agrees that it shall not proceed with any part of the Work ahead of time designated by Contractor without written authorization. In order to expedite the completion of the Project or the Subcontr l r” Page 3 of 6 Builder MW w W m mm Initials wbate gégjflé/ Initiais ”?M’fi Date fwczf’mfl ‘ fa (/1 a Work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractofs Authorized Representative. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages 0n account 0f any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractof’s sole remedy for such delay shall be an extension of time to perform. 28. 1f Subcontractor Is behind in the Work or any portion to the Work is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right to direct Subcontractor, on forty-eight (48) hours notice, to furnish additional labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. If such additional labor is not availabie, Contractor has the right to require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) to such an extent will be sufficient to complete the Work or any portion of the Work in accordance with the construction schedule. 29. Subcontractor shali adhere t0 all requirements ofthe General Construction Activity Storm Water Permit and be responsible for its enforcement by their employees and anyone working under their control. Subcontractor shall be responsible to practice best management practices per the Regional Water Control Board and per project erosion control pian. 30. In the event any portion of the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost 0f protection and/or repair 0f Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shail be practiced per the governing agencies and the Regional Water Quality Control Board. Subcontractor shall be further responsible for damage to adjacent properties or improvements as a result of his not protecting such areas from storm water flowing out of his work area. 31. Subcontractor must supply and maintain all traffic control devices required for all public convenience and public safety as specified by the State of California “Manual of Traffic Controls” and the governing agency. Subcontractor shall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain all safety devices including shoring and shall be responsible for conformance to all local, state, and federal safety laws and regulations. Trenches will not be left open overnight in City Streets. 32. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance will be made to cover any costs in excess of the LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or letter initiated by the project manager prior to the start of extra work. All Extra Work will require submittal of Daily Time Cards to the project manager for approval at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the subcontractor’s standard rental rate sheet discounted 5%. Material prices for extra work shall be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor no later than 45 days after the work was performed. Failure to invoice within the time Iimit will result in forfeiture of right to payment. 33. The unit prices for each item of work are to be used t0 determine the value of the work completed for progress payments and for determining possible changes in the contract amount resulting from changes in drawings, specifications, or scope of work. 34. Subcontractor shall be responsible to contact underground services alert (U.S.A.) prior to any trenching operation. The project superintendent shall be given a copy of the control number issued by U.S.A. Subcontractor shall verify the locations of all Subcontragxfi f , / / X Page 40f6 Builder M, m MmInitials Ky“??? Datex‘g/fi’. f6 Initials "f" “f Date k5” “WW” :7 / fr f, v __..£/-- _-~-- f. existing underground utilities. Locations shown on the plans are approximate and shown for general information only. 35. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer 0r reproductive toxicity, and a written statement must be on file with Contractor prior to any payments being made under this Subcontract Agreement. 36. It shall be the subcontractor’s responsibility to keep all adjacent streets Clean of mud/debris etc. Should Contractor find it necessary to have third party clean streets, Subcontractor shall bare all costs. 37. Subcontractor is solely responsible for his material and equipment left on the jobsite and shall provide his own security‘ 38. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. This shall include cost of all rechecking and testing for certification that did not reach designed tolerance at first inspection. 39. ShouId any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC INCLUSIONS INCLUDING BUT NOT LIMITED TO: Sanitafl Sewer 1. Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set 0f finish C/G stakes for rock and concrete, and one set of complete underground stakes. The cost 0f any restaking or additional grade stakes ordered by Subcontractor will be charged to Subcontractor by Brookfield Homes. 2. The underground Subcontractor shall include the costs of all imported backfill material that may be required by the Public Agencies having jurisdiction according to their standard specifications. 3. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. No claim for extra payment will be allowed for difficulty in trenching because of water. 4. Subcontractor is responsible for the design and shoring oftrenches in accordance with all applicable occupational safety laws. Cost for this shall be included In unit prices for various items of work. No additional compensation shall be made. 5. Subcontractor is responsible t0 review the plans and site of work to determine the extent of pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items of work and no additionai compensation shail be allowed therefore. 6. The underground Subcontractor shall commence construction from the {ow end of al! gravity lines. Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shall be responsible to remedy the situation at his own cost and no additional compensation shall be allowed therefore. 7. All underground spoils not within the area being graded for the Tract street improvements shall be the responsibiiity of subcontractor. 8. Subcontractor is to Knock down his trench spoil in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. 9. AII water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE SYSTEM, UNLESS IT IS BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. Subcontrafitg/ _ ”I j} NM” Page 5 of6 Builder Mr w w- V r . mm Initials ”ffgfiszate é/fiéfi/é InitiaIsWFfifi Dateaf ”?“?fo ‘5' [6‘9 f 10. Lots in this development have been finish graded to Civil and Soils Engineering certification. Subcontractors using these tots for storage of materials will be responsible for the cost of all Cleanup and restoration to a finish lot configuration. If it is found the lots are out of tolerance and recertification is required, those costs will be charged to Subcontractor by Brookfield Homes. 11. No asphalt rock, concrete, or rubble is to be left on the site or buried. 12. In the event any portion of the work should become inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. 13. Subcontractor agrees to install his portion of work to within a tolerance of +/-.1O of one foot (1’). Brookfield Homes will have it’s Engineers check any or all Subcontractor’s work and/or installation and if it is found that Subcontractofis work is not t0 a tolerance of +/-.1O of one foot (1’), subcontractor will immediately return to the jobsite and correct, replace and/or re-execute faulty or defective work. Subcontractor further agrees that after Brookfield Homes engineer’s first check of his work and/or installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractor’s and/or instaliation will be paid for by the Subcontractor until the work and/or installation are to the satisfaction of Brookfield Homes, it’s Engineers and all governing agencies. 14. All excess material used in installing underground system will be removed from the jobsite at the times of completions of work. 15. Excavations shall be adequately shored, braced and sheeted so that the earth will not slide or settle and so that all existing improvements of any kind will be fully protected from damage. Any damage resulting from a lack 0f adequate shoring, bracing and sheeting shall be the responsibility ofthe Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth the subcontractor shall provide adequate sheeting. Shoring and bracing or equivalent method. 16. The underground Subcontractor shall be responsible for the installation of sanitary facilities He shall also be responsible for iowering new and previously existing manholes, valve boxes, cleanouts, etc. to below sub grade level for compiefion of finish grading, rocking and paving and raising same to finish grade, including all patch paving necessary for acceptance. The underground Subcontractor shall also provide a permanent method of marking sewer laterals for use by the concrete Subcontractor in marking curbs (“8” on face of curb where lateral passes under the curb). 17. The sewer lateral shali have a 2” x 4” driven into stable ground at the end of sewer lateral, a minimum of two (2) feet above the pipe to serve as a pre-location marker at the time the onsite plumber’ backhoe digs to expose that sewer lateral end. 18. AH manhole cones at the time of installation shall be topped off by a good cleated (four each Cleated minimum) temporary 5/8” minimum steel plate and covered over with dirt to a minimum of 8” below finished sub grade or to a maximum allowed by City and/or County, Sanitary of Storm District. Finished rings and covers are to be installed prior to finished paving. Manhole castings will be raised to grade. 19. All sanitary sewers will be bailed, airtested, flushed and cleaned after all manholes have been raised to finish grade. If required, televising of the sanitary main is included. 20. Patch paving around manholes and street cleanouts are included. Subcontractor shall comply with Cal Trans specifications of 1/8” in 12’ of tolerance to the existing roadway surface. Cal Trans manual, section 39.6 Subcontrac; ’f g 7 /MM Page6of6 Builder r v .w’f . “mm, Initials,x~“"‘t§§%’§2i;aate fifié/jffi InitiaIs wwfig Date f "ti‘g’rfl/ {Ai/ (/0/ r” [/1 Exhibit “B” Scope of Work Water GENERAL PROVISIONS: a. All work shall be in accordance to the plans and specifications by: b. Civil Engineer: Ruggeri-Jensen-Azar & Associates c. Soils Engineer: Earth Systems Pacific d. Joint Trench Design: NA e. Landscape Architect: Van Dom Abed Landscape Architects, LLC. f. City of Gilroy g. County of Santa Clara 2. This agreement is the only Agreement between Contractor and Subcontractor with respect to the work described herein. No representations, prior agreements or specifications shall be valid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. 3. Subcontractor agrees to complete the work In accordance with the grading plans, improvement plans, utility plans, landscape plans, specifications, and soils & geoteohnioal repori as approved by all applicable governing agencies. If there is discrepancy between any of these documents, the most stringent requirement shall govern. 4. AH material shall meet or exceed the requirements of the applicable governing agencies. If improper 0r substandard material Es used on the job site, whether accepted by Contractor 0r not, upon discovery, Subcontractor shall correct or remove all substandard work or material within five (5) working days at Subcontractor‘s expense. 5. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER OR PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. AH EXTRA WORK requires submittal of DAILY TIME CARDS to Land Development Manager, for approval in writing, at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) plus 10%. 6. Any work done beyond the lines and grades, as shown on the plans, will be considered as unauthorized and shall not be paid for without Qrior written consent of Contractor. No Exceptions. 7. Prices shall remain in effect throuqh completion of proiect. Contract includes move- ins as may be required. Subcontractor shall not be entitled to recover from Contractor any additionai compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension 0f time to perform. 8. Invoicing of any Contractor approved “extra”work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no later than 45 calendar days after work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. 9. Subcontractor shall provide to Contractor a complete list of all Subcontractors’ sources of material for the work to be performed for Contractor. lf Subcontractor purchases material from any other supplier for use on the Contractor’s job, Contractor shail be notified, in writing, within 24 hours after purchase. Subcontractor agrees that Contractor may communicate with any material supplier to verify that its ix x" f f M” . Subcontrag « 7. //’”‘M Page1 of6 Bmlder VVV Mi F Initials «PW Date 2 flg/Z Initials Wag Date J 2/?7-5’ fl / l J 9‘» 10. 11. 12. 13. ’14. 15. 16. 17. 18. 19. 20. bills to Subcontractor have been or are being paid, and may request that the supplier notify Contractor if any bills are not being paid. Subcontractor shall proceed with all phases of its work under the direction ofthe Contractor’s Land Development Manager. All work must be to the complete satisfaction of Contractor and be In accordance with the requirements of alt applicable governing agencies having jurisdiction. Priorto the beginning of work there will be a preconstruction meeting held at the job site at a time to be specified by Contractor’s Land Development Manager. Representatives of the Civil engineer, soils engineer, and governing agencies will meet with the Subcontractor to review the proposed work and the schedule. In order t0 expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Subcontractor agrees to comply with all federal, state and local safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction of the project, including safety of all persons and property, and that this requirement shalE apply continuously and not be limited to normal working hours, and the Subcontractor shall defend, indemnify, and hold harmless the Contractor from any and all liability, real or aileged, in connection with the performance of work on this project, excepting for liabiiity arising from the sole negligence of Contractor. Excavation of trenches shall be in conformance with the specifications and requirements of all applicable governing agencies. Subcontractor further acknowledges by its signature hereon that he has read “Safety Orders” dealing with excavation and trenches and agrees to make its fieid personnel fully aware of its content and it will ensure that there is adequate supervision of the project so that all trenches and excavations are made safe In full compliance with these safety requirements. It shali be the responsibility of Subcontractor to request and schedule all his job inspections and obtain all final acceptance in letter form from all applicable governing agencies, soils and Civil engineers so that Contractor may obtain release 0f bonds and make retention payments to Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost It is the responsibility 0f the Subcontractor to provide a competent English speaking foreman on site at all times. The Subcontractor’s foreman is required to walk all inspections with the City inspector or any other governmental agencies having jurisdiction. Contractor reserves the right to have subcontractor’s foreman or any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. Subcontractor shall ensure that all Its employees SHALL NOT use obscene language, play music loudly or consume alcoholic beverages 0r drugs of ANY KIND 0n Contractors property. Subcontractor and its employees shall observe all speed limits at or near Contractor’s job site. PARTICULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 MPH. Subcontractor shall pay for aII construction water for its use only. It will be the responsibility 0f Subcontractor to arrange for water service including, but not limited to, hydrant meter, fees and water truck service. At all times during construction and until completion of its work, Subcontractor, when it or its subcontractors are operatihg equipment on the site, shall prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work in such a manner that will confine dust particles to the immediate surface ofthe work. Subcontractor shall be responsible for any damage done by dust from its Subcontragjml ,1” / w Page20f6 Builder ”Fr“ m” “I Mm- [nmals , Date ,4} / lnitialsr‘“‘”’ 3 Datev‘r “égf/M / ' f“ g é 21. 22. 23; 24. 25. 26. 27. activities in performing work under its contract. The prices for the various items of work shall cover dust control satisfactory t0 the applicable governing agencies and Contractor’s requirements If this requirement is not met, Contractor shali have the right to maintain dust control and backcharge the Subcontractor. Subcontractor is solely responsible for its materiai and equipment left on the job site and shall provide its own security. Subcontractor shall be responsible for the damage 0r breakage of its work or of other subcontractors” work, or Contractor’s work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost of repairing or replacing such broken or damaged work. Subcontractor shall take adequate steps to protect its work from breakage or damage. If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. Two (2) sets of “as built” drawings shall be included in this contract. This record shall be updated daily by the subcontractor and is to be available at the job site for review by Contractor’s field representatives. At the end 0fthe job, one complete set of these records shall be turned over to the Contractor prior to release of any retention. If the Subcontractor in the course of the work finds any discrepancy between the plans and physical conditions in the field, of any errors or omission in the plans in the layout of the survey stakes, and 0r in instruction given he shall immediately inform the Contractofs Engineer. The Contractor and Contractor’s Engineer is not responsible for errant construction resulting from the construction process proceeding blindly from stakes and or ptans without cross-referencing between the two. The Subcontractor shall conduct routine checks prior to and during construction and shall have plans available at thejob site at all times. Any time the Subcontractor doubts the reasonableness or correctness of an element in the plans or field control staking, he shall contact the Contractor’s Engineer for clarification or confirmation. The Contractor’s Engineer will endeavor to respond to any such inquiry made in good faith on a highest priority basis, and will do so free of charge to either the Contractor or the Subcontractor even if there is n0 error 0r omission. Any work done after such a discovery until the problem has been remedied or dispelled, shall be done at the Subcontractor’s risk. Subcontractor shall take particular care while working near adjacent properties. Extreme care shall be taken when working around existing facilities. Subcontractor shail be responsible for repairing or repiacing existing improvements damaged by him or his Subcontractor or material suppliers. Subcontractor and his Subcontractors will be responsible when hauling any earth, sand, gravel, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal of such debris deposited upon said public or private property shall be the Subcontractor’s responsibility. The Subcontractor shall take every precaution not to damage trees shown 0n the plans t0 remain. The Subcontractor wili be held responsible for any monetary or other damages suffered by the Contractor. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor’s Authorized Representative will provide Subcontractor with a construction schedule. The construction schedule shall set forth the Start Date as well as the date for Completion and any intermediate miiestones. Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees to immediately proceed in accordance with the amended construction schedule. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start ofthe Work by Subcontractor. Upon receipt of such notice, Subcontractor shall begin the Work within 24 hours and shall execute the Work in a prompt and diligent manner and shall complete the work in accordance with the time designated in the Construction Schedule. Subcontractor acknowledges that time is of the essence ofthis contract. Contractor may establish specific requirements or schedules for the pace and rate of performance of the Work. Subcontractor acknowledges that Contractor is relying on Subcontractor’s ability to perform the Work at the pace or rate established by Contractor. Subcontractor agrees that it shall not proceed with any part ofthe Work ahead of time designated by Contractor without written authorization. ln order to expedite the completion of the Project or the Subcontragy?’ / . iffy" Pagesofe Builder «w 3, WM Initials Mpate {gig Initials H‘mx‘fifl Date f” Mm! / //¢/ Work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that Contractor wiH pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractor‘s Authorized Representative. Subcontractor shall not be entitled t0 recover from Contractor any additional compensation or damages 0n account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension of time to perform. 28. If Subcontractor is behind in the Work or any portion to the Work is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right to direct Subcontractor, on forty-eight (48) hours notice, to furnish additionaI labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. If such additional labor is not available, Contractor has the right to require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) t0 such an extent will be sufficient to coyflete the Work 0r any portion of the Work in accordance with the construction sc e ule. 29. Subcontractor shali adhere to all requirements 0fthe Genera! Construction Activity Storm Water Permit and be responsible for its enforcement by their employees and anyone working under their control. Subcontractor shall be responsible to practice best management practices per the Regional Water Control Board and per project erosion control plan. 30. In the event any portion of the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost of protection and/or repair of Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shall be practiced per the governing agencies and the Regional Water Quality Control Board. Subcontractor shall be further responsible for damage to adjacent properties or improvements as a result of his not protecting such areas from storm water flowing out of his work area. 31. Subcontractor must supply and maintain all traffic control devices required for all public convenience and public safety as specified by the State of Caiifomia “Manual of Traffic Controls” and the governing agency. Subcontractor shall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain all safety devices including shoring and shall be responsible for conformance to all local, state, and federal safety laws and regulations. Trenches will not be left open overnight in City Streets. 32. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a compiete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance WHE be made to cover any costs in excess of the LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or , letter initiated by the project manager prior to the start of extra work. All Extra Work will require submittal of Daily Time Cards to the project manager for approval at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the subcontractor’s standard rental rate sheet discounted 5%. Material prices for extra work shall be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor n0 later than 45 days after the work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. 33. The unit prices for each item of work are to be used to determine the value of the work compieted for progress payments and for determining possible changes in the contract amount resulting from changes in drawings, specifications, or scope of work. 34. Subcontractor shall be responsible to contact underground services alert (U.S.A.) prior to any trenching operation. The project superintendent shall be given a copy of the control number issued by U.S.A. Subcontractor shali verify the locations of ail Page 4 of 6 Builder few;KW” S ’ mam m2? w _ «WW Date k // Initials r «’w’ Date L_Jwygi/fiw'4%. Subcontract Initials MW existing underground utilities. Locations shown on the plans are approximate and shown for general information oniy. 35. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer or reproductive toxicity, and a written statement must be on file with Contractor prior t0 any payments being made under this Subcontract Agreement. 36. It shall be the subcontractor’s responsibility t0 keep all adjacent streets clean of mud/debris etc. Should Contractor find it necessary to have third party clean streets, Subcontractor shall bare all costs. 37. Subcontractor is solely responsible for his material and equipment left on the jobsite and shall provide his own security. 38. Removal and reconstruction of any defective work performed by Subcontractor or work that fails t0 be accepted shall be the responsibility of Subcontractor to correct at his own cost. This shall include cost of all rechecking and testing for certification that did not reach designed toierance at first inspection. 39. Should any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC iNCLUSIONS INCLUDiNG BUT NOT LIMITED TO: Water 1. Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set of finish C/G stakes for rock and concrete, and one set of complete underground stakes. The cost of any restaking or additional grade stakes ordered by Subcontractor will be charged to Subcontractor by Brookfield Homes. 2. The underground Subcontractor shall indude the costs of all imported backfill material that may be required by the Public Agencies having jurisdiction according to their standard specifications. 3. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. N0 claim for extra payment will be allowed for difficulty In trenching because of water. 4. Subcontractor is responsible for the design and shoring oftrenches in accordance with aII applicable occupational safety laws. Cost for this shali be included in unit prices for various items of work. No additional compensation shall be made. 5. Subcontractor is responsible to review the plans and site 0f work to determine the extent of pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items of work and no additional compensation shall be allowed therefore. 6. The underground Subcontractor shall commence construction from the low end of aII gravity lines. Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shall be responsible to remedy the situation at his own cost and no additionai compensation shall be allowed therefore. 7. All underground spoils not within the area being graded for the Tract street improvements shall be the responsibiiity of subcontractor. 8. Subcontractor is to knock down his trench spoil in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. 9. All water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE SYSTEM, UNLESS IT IS BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. Subcontrac r m” / WW Page50f6 Builder “ .m‘ m, Initials ”fifi/ Dategéfié 3"" Initialswfi’tiflg Date 3“ ”<2?fo w f /f 10. Lots in this development have been finish graded to Civil and Soils Engineering certification. Subcontractors using these lots for storage of materials will be responsible for the cost of all cleanup and restoration to a finish lot configuration. If it is found the lots are out of tolerance and reoertification is required, those costs will be charged to Subcontractor by Brookfield Homes. 11. No asphalt rock, concrete, or rubble is to be left on the site or buried. 12. In the event any portion of the work should become inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. 13. Subcontractor agrees to install his portion of work to within a tolerance 0f +/-.1O of one foot (1’). Brookfield Homes will have its Engineers check any or all Subcontractor’s work and/or installation and if it is found that Subcontractor’s work is not to a tolerance of +/-.1 O of one foot (1 ’), subcontractor will immediately return to the jobsite and correct, replace and/or re-exeoute fau|ty or defective work. Subcontractor further agrees that after Brookfield Homes engineer’s first check of his work andlor installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractor’s and/or installation will be paid for by the Subcontractor until the work and/or installation are to the satisfaction of Brookfield Homes, it’s Engineers and all governing agencies. 14. Al! excess material used in installing underground system will be removed from the jobsite at the times of completions of work. 15. Excavations shail be adequately shored, braced and sheeted so that the earth will not slide or settle and so that all existing improvements of any kind will be fully protected from damage. Any damage resulting from a lack of adequate shoring, bracing and sheeting shall be the responsibility 0f the Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth, the subcontractor shall provide adequate sheeting. Shoring and bracing or equivalent method. 16. The underground Subcontractor shail be responsible for the instaltation of water facilities. He shall also be responsible for lowering new and previously existing valve boxes, blowoffs, etc. to below sub grade level for completion of finish grading, rocking and paving and raising same t0 finish grade, including all patch paving necessary for acceptance. The underground Subcontractor shall aiso provide a permanent method of marking water services for use by the concrete Subcontractor in marking curbs (“W’ on face of curb where lateral passes under the curb). 17. On the water main installation, Subcontractor will place a temporary riser pipe on top of each water valve a minimum of three feet (3’) above finish grade to protect the location of that water valve so that it can be operated easily for emergency purposes, as weil as place a 2 x 4 wooden marker a minimum of two feet (2’) into the ground and three feet (3’) exposed above the ground at each water service riser (curb cock). {T WILL BE THE RESPONSIBILITY OF ALL SUBCONTRACTORS TO PROTECT AND MAINTAIN THESE WATER VALVE RISERS DURING THEIR PHASE OF CONSTRUCTION IF REQUIRED BY THE FINE GRADE, ROCK AND PAVE CONTRACTOR, VALVE CANS ARE TO BE LOWERED TO AVOID A CONFLICT WITH THE SUBGRADE AND ROCK. 18. Raising of all valve boxes and patch paving is included. Subcontractor shall comply with Cal Trans specifications of 1/8” in 12’ oftoierance to the existing roadway surface. Cal Trans manual, section 39.6. Subcontr "r y/Kx Page 6 of 6 Builder f; $3.”. W, lnifiais ”I Date ‘ $ /‘; Initials "fl" Date ”x a / «4’ é’ g/ 7 I EXHIBIT “B” MASTER TRADECONTRACT AGREEMENT FOR CONSTRUCTION BROOKFEELD HOMES INSURANCE PROGRAM (“BHIP”) This Agreement. made this 8‘“ day oprriL 2015. by and between BROOKFIELD NORCAL BUILDERS INC. a California corporation acting as General Contractor and hereinafter referred t0 as “Builder“. and PLATINUM PIPELINE INCH hereinafter referred to as “Tradesontractor”. is for the performance of part of the work on the following project: ACICNOWIEDGEMENT: PROJECT NAIWE & ADDRESS: PROJECT PHASE: LOT NUMBERS: PROJECT OWNER: CONSTRUCTION LENDER: ADDRESS & LOAN NUMER: PROJECT BUILDER: PROJECT ARCHITECT: GEOTECHNICAL ENGHNTER: PROJECT CIVIL ENGINEER: ENERGY CONSULTANT: PROJECT STRUCTURAL ENGINEER: PROJECT LANDSCAPE ARCHITECT: TRADECONTRACTOR NANIE. ADDRESS: TRADECONTRACTOR PHONE/FAX: TRADECONTRACTOR E-MAIL: TRADECONTRACTOR CONTACT: GENERAL SUPERINTENDENT: CUSTOMER SERVICE: EMERGENCY AFTER HOURS PHONE: COST CODE/TRADE: Storm Drains 040-124-0010 ~ Pipe 040-124-0020 ~ Manhole 040-124-0040 ~ Stuctures 040-124-0050 ~ Connect/Plug BHIP HAZARD GROUP NUMBER: N/A DEDUCT % CONTRACT DOCUMENTS Attached Exhibit “A“ - General Terms and Conditions Attached Exhibit " Attached Exhibit “C“ - Options Pricing Report- N/A Attached Exhibit “D“- Contract Payment Schedule Attached Exhibit “E“ - Tradecontractor Proposal TRADECONTRACTOR NAME: PLATINUM PIPELINE. INC N/A ALLOCATION B“ - Contract Specifications 8: Scope of Work NOE MATARO at GLEN LOMA RANCH GILROY Participant iu Bl-uPzYesa N/A N/A BROOKFIELD MATARO. LLC NONE N/A BROOKFIELD NORCAL BUEDERS INC 500 La Gonda Way. Suite 100 Danville. CA 94526 (925) 743-8000 / (925) 743-8052 Fax WOODLEY ARCHITECTURAL GROUP EARTH SYSTEMS PACH‘IC RUGGERl-JENSEN-AZAR & ASSOCIATES N/A N/A VAN DORN ABED LANDSCAPE ARCHITECTS. INC. PLATINUM PIPELINE INC. 357 Stealth Court Livermorc‘ CA 94551 925.829.6565 / 925.829.7575 larry@platinumpipclinc.com LARRY FILLMORE BILL SCHNEIDER Water Distribution 040-134-0010 ~ Pipe 040-134-0030 ~ Hydranrs 040-134-0050 ~ Connect/Plug 040-134-0100 ~ Other Sanitarv Sewer 040-130-0010 ~ Pipe 040-130-0020 w Manholes 040-130-0030 ~ Latcrals 040-130-0050 ~ ConnccU'Plug 040-130-0100 ~ Other CONTRACTOR N/A Attached Exhibit "F" - Sequence Sheet - N/A Attached Exhibit "G“ - How to Bil] and Lien Releases Attached Exhibit I-f - Site Map Attached Insurance Requirements BUILDER NAME: BROOKFIELD NORCAL BUILDERS INC fl”? r xrf’fmW””(ng“M ”W" ' QMJW'WWMBy: Signature Bv: Bv: Mark Saracco y Print Name Title: F {Mizw Titl : VP of Operations & Purchasing I Date: V/Z@{flfflfl Date: 3:, " (??aya’ ' I License No.2 £775) 7 a License No; 959107 By executing this Master Tradecontract Agreement and initialing herein. each party confirms its consent to and agreement m’th the provisions 0f this section “3/ Tradecontractor InitialsM Date yéf/L’f Edition Date: rev. 11-24/1 flu: K F:\Shzu'ed CONST CPU'R\ACTIVE COW/IUNHTESMATARO- Glen Loma‘xofi‘site- Mataro\CouU‘acts\Plantinum Pipeline inc. 04 03 15 docx WWMQ(/7? ’ T ,, fm‘ *‘a ;«'(‘"*’/i “£5 L;.. 29V WEm , X x M 4‘ 4mm“ _.nmm»...~_ Buflder Initialgifig Date k, f§§mff Kg“3/ EXHIBIT “A" SECTION 1: DESCRIPTION OF WORK, COST PER UNIT AND CONTRACT PRICE. 1.1 Tradecontractor (also sometimes referred to herein as "Subcontractor") agrees to furnish all labor, materials, installation, supplies, equipment, services, machinery, tools, insurance premiums, and other facilities 0f every kind and description required for the prompt and efficient execution of the work necessaxy to complete the described duties at the price specified. The job shall be completed in stn‘ct accordance with the terms and conditions of this Master Tradeconuact Agreement (hereinafter referred to as “Agreement“), any Performance Schedule provided by Builder. inciuding, without limitation, the general conditions, Specifications, plans and drawings prepared for Builder. as set forth in any Addendum to Master Tradecontract Agreement entered into by and between Builder and Tradecontractor ("Addendum"), all of which constitute and are referred to hereinafter as the "Contract Documents," and all applicable codes, ordinances. regulations and policies and to the fiJll satisfaction and acceptance of Builder and applicable inspecting jurisdictions, including all cartage and applicable taxes of any nature whatsoever. In addition. Tradecontractor shall meet or exceed with all applicable functionality standards as set forth in Civil Code Sections 896 and 897. If the Contract Documents and/or codes and/or functionality standards are silent, the work shall be done in accordance with accepted industry standards. Tradecontractor acknowledges that no work shall be performed under this AgTeement unless and until Builder and Tradecontractor have entered into an Addendum identifying the specific Project and Tradecontract Scope of Work therefore. SECTION 2: PAYMENT. 2.1 Tradecontractor will not be paid unless it has fimy perfomed such portion of the work to the extent billed and until it has complied with all ofthe provisions of this Agreement. Tradecontractor shall submit monthly invoices for work and materials furnished, in duplicate, to Builder and/0r Owner for approval. In addition. to the extent Tradecontractor performs work as an "extra" as defined and as set forth in Section 9 of this Master Tradecontract Agreement, such "extra" charges shall be included with Tradecontractor's monthly billing, but in no instance shall such billing be sent to Builder and/or Owner later than thirty (30) days from the date that such "extra“ work is completed. Failure to comply with this provision shall serve as a waiver by Tradecontractor for such payment on such "extra" work. A11 invoices shall be accompanied by appropriate conditional and unconditional waiver and release documents and forms satisfactory t0 Conn'actor, executed by Tradecontractor. its laborers, tradeconuactors and all suppliers who furnished materials to said job to the date ofthe invoice(s). No payment made hereunder shall be construed as evidence of acceptance of any pan of the work, nor a waiver 0f any claim by Builder and/or Owner arising out 0f faulty workmanship 0r materials or from failure of Tradecontractor to stn'ctly comply with the contract documents. 2.2 Tradecontractor understands and agrees that all work must be billed/invoiced within ninety (90) days of completion 0f work in order to be considered for payment. Any invoice submitted subsequent to this time frame shall be considered delinquent and both parties covenant that all rights to payment are waived and no further payment will be required of Builden For clan‘fication purposes, "completion" of work is defined as follows: when the Scope of Work as defined in the applicable Addendum, is substantially complete or has been acknowledged as complete by Builder and/or its agents or representativesV In no event shall completion of work be determined to be later that the filing date ofthe Notice of Completion. 2.3 Terms of Payment: See Progess Payment Schedule in attached Exhibit "D" to each Addendum. SECTION 3: INDEPENDENT INVESTIGATION. 3.1 Tradecontractor hereby wanents that it has made its own careful and independent investigation and review of the jobsite conditions, plans, specifications, reports, Performance Schedule, and relevant statutes, codes, ordinances, regulations and policies and is fufly familiar with the requirements and difficulties presented. Tradecontractor hereby warrants and agrees it is not relying upon any opinion or representation of Builder not contained in this Agreement 0r other documents incorporaIed herein. Tradecontractor warrants that it has found no ambiguity or conflict in the plans and specifications other than those which have been disclosed in writing prior to the execution 0f this Agreement. 3.2 Tradecontractor also warrants that it has verified that all materials and equipment necessary to perfonn its work are available when and as needed pursuant to the Agreement and the Performance Schedule. 3.3 Tradecontractor has visited the site and is familiar with the work completed. if any. including but not limited to. all work in the models and the most recent phase of production. Tradecontractor is aware of all changes that have been made including those which may not be mcoxporated into the current set of plans and specifications, and it agrees that the contract pn‘ce for the Scope of Work includes all previous changes. The Tradecontractor understands that no additional compensation will be considered unless consistent with Section 9 of this Tradecontract Agreement. SECTION 4: CLEAN UP/HAZARDOUS MATERIALS. 4.1 Tradecontractor agrees to clean up and remove from premises all waste maxedals, debris and spoil of every description which may accumulaxe in the building (if applicable) or about the premises as a result of its work. The premises must be left in a clean and acceptable manner as determined at Builder's sole discretion. Should the Tradecontractor refuse or neglect to clean up 0r remove waste materials, debris and spoil upon being directed to do so by Builder, Builder may remove same or cause it to be removed by others and the Tradecontractor shall suffer a deduction from its contract price for the expense incurred. 4.2 Tradecontractor represents and warrants to Builder that it, its employees and agents will not release, discard, discharge or dispose of at the Project, on the ground 0r in the surface water thereof, any hazardous substance hereinafter defined. In the event Tradccontractor breaches this representation or wammty. said breach shall, (i) constitute a material breach of this By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontract V 4/ / Builder / w mm” Initials W Date 7,-3éiJZ/ffi/ Initials W: w”? Date jig}? “Via? " " V/I Edition Date: rev. I 1/22/11(doc#318222 -bjh @ ms&l F.'LSlmre:flCONSflPURLACTII/E COJm'llZ/UV’ITIESWIA TARO - chn LomaLOflsite ~ MamrolMastcr Contract DacsHEXHIBIT/i BOILERPLA TE_]V31.12.docx 1 Agreement, (ii) entitle Builder to the remedies provided in Section 6.1 of this Master Tradecontract Agreement; and (iii) constitute damage to or destruction of property requiring the indemnificaiion of Builder and Owner pursuant to Section 13 0f this Master Tradecontract Agreement. For purposes of this Agreement, the term hazardous substance shall mean any chemical substance, oil, waste, petroleum or petroleum product, 0r other material which is 0r becomes designated, classified 0r regulated as being "toxic" 0r "hazardous” or a "pollutant," under any Federal, State or local law, regulation 0r ordinance. 4.3 Tradecontractor to provide all applicable MSDS information relating t0 any activities missing from this Agreement prior t0 commencing such activities. 4.4 Tradecontractor acknowledges and accepts that this Project, and all work on this Proj ect, falls under the jurisdiction and authority of the National Pollutant Discharge Elimination System (“NPDES”) General Permit and that this Project has a Stormwater Pollution Prevention Plan (“SVVPPP”) program that has been submitted to the NPDES and is implemented on this site. Tradecontractor funher acknowledges SWPPPS compliance is mandated and strictly enforced by local and state agencies. Included in the SW'PPPS. is the requirement for implementation of Best Management Practices (“BMPS”), as approved by the NPDES and SWTPPS and BWS requirements as t0 its operations 0n the site. A11 SWPPPS and BMPS requirements are 0n file in the project trailer With the Project Superintendent and are available for review by all persons working on the Proj ect. It is Tradecontractor‘s sole responsibility to know and be familiar with all NPDES, SWPPPs and BMPs requirements applicable to the Proj ect. Tradecontractor shall clean up its work and debris there from in complete compliance with all SWPPPS, BMPS and similar rules and regulations and M11, within s'm' hours 0f notification to deecontractor onsite personnel, correct all deficiencies if Tradecontractor shall have failed to comply with such rules and regulations or in the event 0f any violation notice by any local or state authority. Tradecontractor further acknowledges that any Violations, fines or other costs associated with its noncompliance with a1] SWPPPS and BMPS shall be bome solely by Tradecontractor inespective of which entity is cited, fined or incurs costs related to such noncompliance by Tradecontractor. At a minimum, the following BMPS shall be adhered to by all tradecontractors working on the project; 1) Every tradecontractor is responsible for all trash and debris generated from its operations. This includes paper trash (e.g., cigarette butts, lunch wrappers, material wrap and containers); 2) A11 trash and debris is Io be properly disposed of in designated locations, per NPDES, SWPPPS, BMPS and/or the Project Superintendent; 3) A11 materials are t0 be neatly stacked in appropriate areas, as may be designated by Project Superintendent on a continuous and daily basis; 4) During the course ofwork and at the end of each day, the site is to be maintained in a clear and workmanlike manner and in complete compliance with all NPDES, SWPPPS and BMPs requirements. Tradecontractor is responsible to ensure that its employees, tradecontractors and suppliers are aware 0f and strictly comply with this Article. SECTION 5: WORK COMIVIENCEMENT AND PROGRESS. 5.1 Time is of the essence in this Agreement. Tradecontractor agrees to commence work to be performed hereunder within twenty-four (24) hours of receipt of notice to commence from Builder and to complete its work in accordance with Builder‘s Performance Schedule and all modifications thereto, which schedule is incorporated herein by reference and made a part hereof. Tradecontractor warrants that it has reviewed the Performance Schedule and is satisfied with it and hereby agrees to review as necessary all modifications t0 that schedule which will be maintained in the jobsite office 0f Builder. Builder and Tradecontractor recognize that from u'me-to-time final plans. schedules and specifications for a project may not be complete at the time of execution of the Tradecontract Agreement. 1n such event, Tradecontracmr agrees to advise Builder of any objections within seventy-two (72) hours of notice from Builder that the plans, schedules or specifications have been finalized If, in the opinion of Builder, at its sole discretion, Tradecontractor is not fumishjng sufficient men, materials or equipment to meet the Performance Schedule, Builder may exercise the options available to it in Section 6 of this Tradecontract Agreement. 5.2 Builder shall maintain observation of the premises on which the work hereunder is t0 be performed and shall have the right to determine the Project working hours, the time and the priority of the work of other tradecontractors and all matters concerning the timely and orderly conduct of the work of the Tradecontractor. Unless specifically noted herein, there are no assumptions relative to 0r limitations upon the number 0f move~ins required by the Tradeoontractor. 5.3 No Damage for Delay: It being expressly contemplated by the panics that in the event Tradecontractor is delayed at any time in its performance of the work by act or neglect of the Owner, Architect, Builder, or any employee of Owner, Architect, Builder, or of a separate contractor employed by Owner: 0r by changes ordered in the work, 0r by labor disputes, severe weather, fire, unusual delay in deliveries: work suSpensions, acceleration, design defects, changes, unavoidable casualties, or other causes beyond Builder's control, or by delay authorized by Owner pending arbitration, or by other causes which Builder determines may justify delay, then Tradecontractor‘s sole and exclusive remedy for delay shall be an extension of time for performance of the Tradecontractor’s work, except and unless such delay is the result of active intentional interference by the Builder and Owner. No claims for additional compensation 0r damages for delays, whether in the furnishing of material by Builder or delays by other tradeoontractors or Owner will be allowed by the Builder and said extension of time for completion shall be the soie remedy of Tradecontractor. No allowance or extent of time referenced above shall be made unless a claim therefore is presented in writing to the Builder within 48 hours of the commencement of such delay, and under no circumstances shall the time of completion be emended to a date which will prevent Builder fiom completion of the entire project within the time that Owner allows Builder for such completion. 5.4 Tradecontractor shall schedule its work and the presence 0f its employees at the jobsite and any deliveries of supplies 0r material by its materialmen and suppliers to the jobsite on such days, and at such times and during such hours, as may be directed by Builder. Tradecontractor shall assume responsibility for such schedule compliance not only for its employees, but also for its materialmen and suppliers. 5.5 Tradecontractor shall be reSponsible for the delivery, unloading, storing and protecting of all equipment supplies and materials. A11 materials stored on the site must be stored in a container supplied by the deecontractor. Garages or any other storage will not be supplied by Builder. Builder shall approve or disapprove Tradecontractor's storage location at its sole discretion. 5.6 The Tradecontractor shall abide by and conform to any procedures and schedules established by Builder which may By executing this Master Tradecontract Agreement and inifialing herein, each party confirms its consent to and agreement with the provisions of this section. Builder w M M m» Date z; 2;,1 25 Initials wgflxfi Date J "kaifi/J” Edition e: rev. II/22/Il(doc#318222 -bjh @ ms&l ELSImredlCONS‘flPE/RMCYYVE COIPIFVIUAWTYE‘SWMATARO - Glen LomaiOflsite - MataroLMaster Contract DocleXHIBITA BOILERPLA TE_J.31.IZ.docx Tradecontracto Initials 2 A ‘/-~:\ be necessitated by Acts of God, Tradecontractor‘s failure to comply with this AgTeement. or other factors which affect completion. Tradecomractor covenants and agrees t0 coordinate its work with other tradecontractors and to cooperate With other tradecontractors working on the Proj eat. 5.7 Tradecontractor shall examine the surface 0r area to which its work is to be attached or performed and shall repon in writing any related work which is not suitable to accommodate its work. Tradecontractor shall not proceed with the installation until same has been corrected. Commencement of work shall constitute an acceptance by Tradecontractor of surfaces and conditions t0 which its work relates and it shall be legally responsible for obtaining proper and satisfactory results. 5.8 Responsibiiity for Other Trades: Tradecontractor shall assume legal responsibility for the defective work of others. if said Tradecontractor accepts the work, or materials, and proceeds with its Scope of Work without written notification to Builder. 5.9 Liquidated Damages: The parties acknowledge and agree that Builder will suffer substantial damages if Tradecontractor fails to complete the Scope of Work contemplated by the Tradecontract Agreement within the duration of time and working days as specified by the Performance Schedule attached hereto. The parties realize that it will be extremely difficult and impractical, if not impossible, to ascertain with any degree of certainty the actual amount 0f Builder's damages in the event of such failure to perform by Tradecontractor. Therefore, the parties hereby agree that $200.00 per unit per day represents a reasonable estimate 0f such damages considering all of the circumstances existing on the date of execution ofthe Tradecontract Agreement and thal Builder shall have the fight to retain the full amount of said sum against Tradecontractor funds owed on this Agreement. as a remedy to Builder‘s potential damages should Tradecontractor default. ' 5.10 In the event a dispute arises between Builder and Tradecontractor during Tradecontractor's performance 0f the work. Tradecontractor shall continue to perform its obligations under this Agreement unless otherwise notified in writing by Builder. 5.11 Should Owner or Builder institute third party review for any and all facets 0f the Scope of Work of Tradecontractor as set forth herein. Tradecontractor shall cooperate fully With any and all requests of said Owner or Builder or third party inspector. 5.12 Should Tradecontractor be a subcontractor responsible for providing drywall for or t0 the Project, Builder ‘5 proj ect superintendent shall and will inspect any and all drywall delivered to the Project t0 be used in connection with the performance of the Work, and confirm that prior to incorporation into any Structure, the drywall conforms with the Plans and Specifications and that in any event, the drywall is not identified as being manufactured in China. However, Builder‘s inspection is secondary t0 Tradecontractor’s responsibilities under the Contract Documents and does not in any way relieve Tradecontractor for the responsibility for providing the materials per the Plans and Specifications SECTION 6: TERMINATION. 6.1 Tradecontractor shall perform the work in a prompt and diligent manner so as t0 promote the general progress at the entire Project and shall not interfere with nor hinder the work of Builder or any other tradecontractor. Tradecontractor agrees t0 reimburse Builder for any and all damages which may be assessed against and collected from Builder, which are attributable to or caused by Tradecontractor's failure to furnish the materials and perform the work required by the Tradecontract Agreement in the manner provided for herein. If Builder shall deem it necessary, Tradecontractor, 0n demand of Builder, shall provide “additional” workforces, overtime, additional shifts, and shall expedite the furnishing of materials so as to meet the Performance ScheduIe‘ 6.2 In the event the Tradecontractor, at any time, refuses 0r neglects to supply a sufficient number of properly skilled workers or a sufficient quantity of materials of proper quality, or is adjudicated a bankrupt; or files a reorganization proceeding, or commits any act of insolvency, or makes an assignment for benefit of creditors without Builder's consent, or fails to make prompt payment to his materialmen and/or laborers, or fails in any respect to promptly and diligently prosecute the work covered by this Agreement, or becomes delinquent with respect t0 contributions or payments required t0 be made to any health and welfare, pension». vacation, apprenticeship, or other employee benefit program or trust, or fails to fulfill any of the provisions by him to be performed, 0r otherwise fails to fully perform any and all ofthe Tradecontmct Agreement herein contained. Builder may. at his option: (a) After giving 24 hours written notice to Tradecontmctor to cure. provide any such labor and materials as may be necessary and deduct the cost thereof from any money then due or thereafter to become due to the Tradecontractor under this Agreement; or (b) Should Tradecontractor fail to cure the default referenced above within 24 hours, the Builder may, at its option, terminate Tradecontractor's fight t0 proceed with the work and in that event, Builder shall have the right to enter upon the premises of the Project and take possession. for the purpose of completing the work under this Agreement, of all materials, tools, equipment, and appliances of Tradecontractor, and may employ any other person(s) to finish the work and provide the materials therefore. 6.3 In the event of such termination of Tradecontractor's right to proceed with the work. said Tradecontractor shall not be entitled to receive any further payment under this Agreement until the scope of work of this Agreement is completed. At that time, if the unpaid balance of the amount to be paid under this Agreement exceeds the expenses incurred by Builder in finishing Tradecontractor's work, such excess shall be paid by Builder to Tradecontractor; but, if such expense shall exceed such unpaid balance, then Tradecontractor shall promptly pay t0 Builder the amount by which such expense exceeds such unpaid balance. The term "expense" referred to in the last sentence shall include expenses incurred by Builder for furnishing materials, labor, equipment, and other expenses for finishing the work. for any attorney's fees incuned by Builder effectuating the instant temination or interpreting the Agreement, and any damages sustained by Builder by reason 0f Tradecontractor‘s defauln plus a markup of 15 percent for general and administrative expense. and a 10 percent profit on any and all of such expenses. Builder shall have a lien upon all materials, tools and appliances taken possession 0f, as aforesaid, to secure the payment thereof. The notice referred to in this section will be sufficient and complete if mitten notification is given at the Project site or when faxed or mailed to Tradecontmctor at hjs fax number or address as shown in this Agreement. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. Tradecontract = Builder W,“ w» WW Initials aw DateWK Initials “if; ”j? Date W5 '5?"ij ' /;~ {W ‘1' .v Edition Date: rev. 11/22/11 (d0c#318222 -bj}'1 @ ms&l F:LSI:ared1CONSNPURMCTIVE co.mmwnESWA TARo - Glen LamaLOffsim - Mazaroumszcr Contract DocsuEXHIBIT/x BOILERPLATEJJJJMom A 3 6.4 Builder may withhold, or on account 0f subsequently discovered evidence. nullify the whole 0r part of any payment due to Tradecontractor to such extent as may be necessary to protect Builder from loss, including costs and attorney's fees, on account 0f: (a) Defective work not remedied; (b) Claims filed or reasonable evidence indicating the probable filing thereof; (c) Failure of Tradecontractor to make payments promptly to a tradecontractor or for materials, labor, or fringe benefits; (d) A reasonable doubt that this Tradecontract Agreement will be completed for the balance then unpaid; or (e) Damage to Builder 0r other tradecontractors. (f) Violations of Functionality Standards not remedied as set forth in Civil Code Section 896. 6.5 Builder reserves the absolute right to terminate this Agreement for any reason. including its own convenience. 1n the event oftermination without cause, Tradecontractor shall be entitled to payment only as follows: (a) Cost 0f the work actually performed in confonnity with this Agreement; plus (b) Ten percent (10%) of costs referred to in subparagraph (a) above, for overhead and profit, minus any amounts owed to Builder for BHIP coverage and/or any Contractor Allocation expenses. However, in no event shall the Tradecontractor be entitled to any amount that exceeds Sections (a) and (b) above. SECTION 7: LABOR. 7.1 The parties agree and declare that the Tradecontractor and Builder are separate, independent entities and that the deecontractor has full responsibility for the performance of the work and the direction of its work force, subj ect only to the duty of the Tradecontractor to cooperate with Builder and other tradecontractors. 7.2 Tradecontractor recognizes that in the performance of its work, it will be required to work side-bywside with other tradecontractors and representatives of Builder on the Project. Builder and/or other tradecontractors may not be signatory to collective bargaining agreements With the various labor organizations. 7.3 Tradecontractor agrees that should there be picketing or a threat of picketing by any labor organization at or near the Project, Builder shall establish a reserved gate for use by the Tradecontractofs employees and suppliers. In that event. it shall be the affirmative obligation 0f the Tradecontractor, as a material consideration of this Agreement and each and every other agreement between the parties hereto. to insure that its employees and other suppliers use only the gate or entryway designated by Builder. Notwithstanding the establishment or non-establishment of a reserved gate, it shall be the continuing obligation 0f the Tradecontractor to properly staffthe job with qualified employees without interruption or delay. 7.4 In the event the Tradecontractor‘s employees refuse to work because of a labor dispute or grievance with the Tradecontractor, Builder 0r some other tradecontractor, it shall not relieve Tradecontractor of its obligations to supply enough properiy skilled workers to perform the work undertaken by it without interruption. 7.5 Tradecontmctor hereby wanants that it is not now nor will it be delinquent in the payment or reponing t0 any labor- management fifinge benefit trust fund, and funher that Tradecontractor i5 not now nor will it appear on any delinquency list published by any labor-management fringe benefit trust fund. 7 .6 When, in the judgment of Builder, Tradecontractor shall have refixsed, neglected or failed to supply enough properly skilled workers, or otherwise shall have refilsed, neglected or failed to comply With the provisions of this Section 7, Builder shall be able to exercise its rights in accordance with Section 6 of this Agreement. 7.7 Tradecontractor also agrees to comply with all of the terms and provisions of any Equal Opportunities requirements imposed upon Builder, to the same extent as though said requirements were imposed upon Tradeconfiactor, provided Builder informs Tradecontractor of said requirements; and Tradecontractor’s refusal to do so within forty-eight (48) hours of notice by Builder shall permit Builder to exercise its rights and remedies set forth in Section 6 of this Agreement. SECTION 8: TAXES. Tradecontmctor agrees to pay any and all taxes, including specifically, but not by way of limitation: sales taxes, use taxes, gross receipt taxes, excise taxes, old age benefits, withholding taxes, and unemployment compensau'on taxes under all State, local and Federal laws with respect t0 all materials fiunished and employees engaged in the perfonnance ofthis Agreement. SECTION 9: EXTRAS. 9.1. It is understood and agreed that all labor and/or materials furnished by Tradecontractor, even though said labor and/or materials may not be specifically required or demanded by this Agreement or the Contract Documents, shall nevertheless be deemed By executing this Master Tradecofitract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradeconfl' Builderwflflm ”f V MW InitialsW Dategflfig/ Initials «J Date {,3 Q&W x?” 4/ Editio/Date: rev. 11/22/11 (doc#318222) -bjiz @ ms&l RLS/mremcom'snpmmCHVE comrvNITIESMA TARO - Glen Lomamffsz‘re - Mazarowtmcr Comma DocszHIBITA BOILERPLA15331124er 4 to be included within the work, and the scope 0f labor and/or materials properly and necessarily required for the performance thereof. subject only to the folloufing conditions and none other, t0 wit: that any labor and/or materials furnished hereunder that is authorized in writing by Contractor's departmental Vice President 0r Director of Purchasing, together with a definite statement in said authorizaiion that said labor and/or material shall be deemed an ”extra" and shall be paid for in addition to the contract price at a sum specified in said written authorization. Contractor, at any time during the progress 0f said Project: may order in writing deviations. additions or omissions and the same shafl not void this Agreement, but the value thereof. as agreed upon in such wfittefi authorization, shall be added to, or deducted from, the contract price hereof. It is expressly agreed between the parties that any work performed by Tradecontractor that is not authorized as an "extra" as set forth in this paragraph is not compensable t0 Tradecomractor bv any legal or equitable theory, it. being the intent 0f the parties that any such claim by Tradecontractor is legally waived aan Tradecontractor shall be estopped from asserting any right of payment. 9.2 It is expressly agreed and understood by and between Builder and the Tradecontractor that no "Extra" charge(s) will be paid without written authorization; that the subcontract price includes performing all work specified according to specification (when applicable) and that said work must comply with all City, County, State and Federal building codes and requirements, as well as the functionality standards set forth in Civil Code Section 896. I ~ 9.3 An authorization for any extra work shall be obtained in writing by the use of the ”Change Order" form, a sample of whlch 1s attached hereto as Exhibit "E." Exhibit "E" is hereby incorporated by reference as part of this Agreement, and wherever sald forms are utilized and executed by the parties t0 this Agreement: the terms thereof shall be fully enforceable as part of this Agweement. SECTION IO: DEVIATIONS. Tradecontractor shall make no changes and shall be responsible for any deviation from the Contract Documents that it may make, and it may be required t0 re-do any non-confomling work as soon as is practicable t0 conform strictly to the Contract Documents unless a mitten authorization by Builder, addressed to the Tradecontractor, shall be given setting forth specifically in detail what changes shall be made. The cost of changes, unless otherwise specifically agreed upon in writing. shail not exceed a credit for any work not required to be done as a result of such changes. SECTION 11: SAFETY (CAL/OSHA) AND DISCIPLINE. 11‘] Tradecontractor, Tradecontractor‘s employees and agents. and any other party contracting with Tradecontractor shall comply with all applicable Federal, State, local and any other legally required safety, environmental and health standards, orders, rules, regulations or other laws. Tradecontractor shall bear full financial responsibility for the compliance of those persons referenced therein. 11.2 Should Tradeconu-actor, Tradecontractor's employees, Tradecontractor's tradecontractors, or their employees fail to comply within twenty~four (24) hours from the time Builder 0r any govemmental agency issues Tradecontractor a written notice of noncompliance, or within the time 0f an abatement period specified by any government agency. whichever period is shorter, Builder may exercise any 0f the remedies available t0 it under Section 6 of this Agreement. 11.3 All equipment used on or near the Project shall be regularly inspected and certified as reliable and dependable and shall be maintained to ensure the safety of the operator and all others on or near the Project. A1} electrical devices (such as cords, connectors, plugs, eta), shall be in good condition and properly grounded. A11 injuries, regardless of severity, will be reported in writing to Builder within twenty-four (24) hours of occurrence. 11.4 A11 vehicles and/or persons dn‘ving vehicles on the Proj cot must be licensed, properly insured and registered. 11.5 Drinking of alcoholic beverages 0r the use of any controlled substance at the Project is strictly prohibited. Tradecontractor‘s employees are prohibited from using the interior of any unit for coffee or lunch breaks. Garages and other areas designated by Builder may be used. N0 dogs are pennit‘ced at the Proj ect and radio volume 0r any audio device will be controlled at the discretion of Builder. Wearing audio headsets at any time is strictly prohibited. Tradecontractor shall comply with all applicable noise abatement ordinances. 11.6 Tradecontractor warrants it is aware of the OSHA Hazard Communication Standard and its requirements. Tradecontractor is to supply Builder with a Material Safety Data Sheet (MSDS) for every hazardous substance Tradecontractor has delivered or uses on the Project. The MSDS is required for any material(s) container label using the word(s) "DANGER,“ "CAUTION," "FLAMMABLE," or "WARNING." Tradecontractor is to insure that all hazardous products are in a container with a label clearly identifying the chemical(s) with appropriate hazard warnings. A11 labels are to be in English. easily understandable and not defaced. When any substance is transferred fiom one container to another and is not immediately used solely by the person making the transfer, that container must be labeled with the hazard information from its source. Tradecontractor is responsible for the control and disposal of all substance containers and their contents. No empty or partially empty container will be permitted to remain on the site after Tradecontnactor has finished using it. A11 empty containers shall be removed from the Project by the Tradecontractor immediately. 11.7 (a) Tradecontractor acknowledges that Tradecontractor, and not Contractor, is the “Controlling Employer“ and therefore has the authority and responsibility for the safety of its employees. Tradecontractors and materialmen, as well as the safety of other tradecontractors and trades in relation to Tradecontractor’s work or trade, while on the jobsite. 1n filrtherance thereof, Tradecontractor shall provide safe and sufficient facilities at all times. Tradecontractor shall take all safety measures related to its work or trade as required by Contractor and all applicable laws, ordinances, rules, regulations and orders of any public authority including, without limitation. the California OccupatiOnal Safety and Heath Act of 1973 and all rules and By executing this Master Tradecontract Agreement and initialjng herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontract Builder fl M m” InitiaIS W Dateg/gflg/ minds Wt? ”fl Date Lfic%”“VJ “‘" f7,6; Edition £13: rev. I 1/22/11 (d0c#31 8222) -bj}z @ ms&l RlSlIareflCONSTLPURKACUVE COMJWIL’WTIESUWTARO - Glen LomahOf/‘sire - JWararoUVlmer Conmw! DocsiEXHIBITA BOILERPLAm_IJIJZJom: D regulations promulgated by the California Depamnent of Industrial Relations pursuant to said Act. In addition thereto, if Contractor deems it necessary, additional security precautions such as fences, watchman. etc.. may be required and Tradecontractor shall pay its proportionate share based 0n the subcontract price ratio to the total construction cost. (b) Tradecontractor shall be responsible to Contractor for the reimbursment of any damages suffered by Contractor as a result 0f failure to comply with the terms of this Article, including any fines or penalties and damages due to claims against Contractor for injury to persons or property. (c) Tradecontractor, by execution hereof, verifies that all personnel assigned to perform work under this Agreement have completed safety training specifically required by state/federal OSHA and will be qualified by training and/or experience to complete the assigned work. A11 necessary personal protective equipment deemed appropriate for the work assignment will be provided by the Tradecontractor at its expense to all personnel who will be instructed in the proper selection, care and use of such safety devices and safe guards. Material Safety Data Sheets (“MSDS”) related to products which may be used on the project will be provided to Contractor, and any personnel who may be required or permitted to use such products will have been made aware of the risks associated with such materials and the safety precautions necessary t0 protect people, property and the environment. As the “Controlling Employer" with regard to the safety of its own employees~ Tradecontractor shall have designated “Responsible, Authorized Person for Safety” on the jobsite at all times that Tradecontractor’s personnel are working on the project. Tradecontractor will identify and mange for additional safety training as the need arises. will perform continuous hazard recognition for unsafe work practices and/or unsafe work conditions and will abate same. and will eliminate all unacceptable risks howsoever created. It is a condition of this Agreement that Tradecontractor have an effective safety and health program that meets or exceeds OSHA requirements. It is Tradecontractor’s responsibility to report any safety or health hazards or potential hazards before commencing any activity that poses any hazard to any person, property or the environment. SECTION 12; PROTECTION OF WORK AGAINST DAMAGE OR INJURY. Tradecontractor shall be responsible for protecting its own work material and equipment and shall be responsible for the correction, replacement or repair of any of its work which is damaged prior to final completion of the Project. Tradecomractor shall be responsible to Builder or third party tradecontractors, as appropriate: for any damage to Builder's work or that of third party tradecontractor to Builder whose work is damaged by Tradecontractor. Tradecontractor shall also protect adjacent property from injury or damage arising out of its work and shall repair or accept responsibility for any such injury or damage. SECTION 13: INDEMNITY FOR NON-DEFBCT CLAIMS. 13.1 To the fullest ement permitted by law, Tradecontractor shall defend, indemnify and hold hannless Builder and/or Owner and their officers, directors, agents, employees, divisions, subsidiaries, shareholders, partners, affiliated companies, and ovmers, any lender with an interest in said Project, and all other parties listed as indemnified parties under this Agreement or other entities reasonably designated by Builder/Owner (collectively, "Indemnified Parties”) from all claims. demands, causes of action, damages, costs. expenses, attorney fees, injuries. losses, suits or liabilities, in law or in equity, of every kind and nature whatsoever (but expressly excluding Defect Claims, as defined in Section 14.1), arising out of or in any way connected with any ofthe following acts or omissions by Tradecontractor or its officers, directors, agents, employees, divisions, subsidiaries, shareholders, parmers, affiliated companies or owners, or others for whom Tradecontractor is responsible, including, without limitation, Tradecontractor‘s tradecontractors and materialmen: (i) any willful misconduct or other intentional acts; (ii) any acts or omissions giving rise to a claim for punitive damages; (iii) any acts or omissions ofthe Tradecontractor or its tradecontractors away from the Project site; (iv) any acts or omissions in connection with ownership, maintenance, use (including transport of mobile equipment) 0r loan t0 others of aircraft. automobiles or watercraft owned or operated by or rented or loaned to Tradecontractor, its tradecontractors or others for whom Tradecontractor is responsible; 0r (v) any acts or omissions giving rise t0 employers liability and/or injury or death subject to state workers‘ compensation laws and regulations. 13.2 Notwithstanding the indemnity owed by Tradecontractor to Builder and Owner as set forth in Section 13.1 above. to the fullest extent permitted by law, if Tradecontractor or any of its tradecontractors including, but not limited to. its ofiicers, directors, agents. employees, divisions, subsidiaries, shareholders, partners. affiliated companies, owners or others for whom Tradecontractor is responsible, is not a participant in Brookfield Homes Insurance Program ("BHIP"), or in the event the BHIP is not applicable to the Projecn or if a claim, loss, demand, cause of action, damage, suit. loss or liability falls outside the scope of coverage of the BHIP, then Tradecomractor shall agree to indemnify, defend and hold harmless the Indemnified Parties from and against any and all claims, losses, damages, demands, causes 0f action, suits, injuries, liabilities. and costs (excluding Defect Claims as defined in Section 14.1) including all costs of litigation, mediation, arbitration and attorney‘s fees, arising from 0r relating to (1) any failure by Tradecontractor to perform its obligations under this AgTeement, (2) any damage suffered by any Indemnified Parry relating to the work performed by Tradecontractor. (3) the death of or injury to any person or the damage to. or. loss of use of, loss of income fiom, or destruction of any property however caused, regardless of any negligence by Builder. Owner or Tradecontmctor and their officers, agents and employees, be it active or passive, or by the use of Builder's equipment, labor or facilities regardless of whether (a) Builder shall have consented t0 such use, or (b) the death, injury 0r damage shall have been caused by unsafe conditiOns. The duty to defend herein shall arise immediately upon such claim, loss. damage, demand, suit, injury or liability being By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecontrac Builder ¥ w fl Initia1s ‘ _ Date f/éfi/g’5/ Initials jif’igw Date ,flgfif‘wmM“ , f / Edition Date.- rev. 11/22/11(doc#313222) -bjh @ ms&1 FUS/lafcmCONSflPURL4CHVE C01WJVIUN'IUESLVM TARO - Glen Lomalomite - zwatwoLMaYIef Contracl DoCSLEXHIBIT/i BOILERPLA TE_I.3I.L7.docx 6 asserted against Builder and/or the Owner, and their officers, agents and employees. A11 matters which are the subject of the defense, indemnity and hold harmless provisions under Sections 13.1 and 132 above shall collectively be referred to as "NonnDefect Claims“. Tradecontractor shall owe a complete defense obligation to Builder and Owner immediately upon notice 0f a Non-Defect Claim that arises out 0f, pertains t0 or relates to Tradecontractor's scope 0f work under this Agreement and all addenda hereto. This indemnity obligation shall survive the Completion of Work and termination ofthis Agreement. SECTION 14: INDEMNITY FOR DEFECT CLAIMS. NOTW'ITHSTANDING ANYTHING IN THIS SECTION 14 TO THE CONTRARY, THE TERMS OF THIS SECTION 14 REQUIRING TRADECONTRACTOR TO INDEMNIFY, HOLD HARMLESS OR DEFEND ANY INDEMNIFIED PARTY SHALL NOT APPLY (A) IN THE EVENT THE BHIP IS APPLICABLE TO SUCH RESIDENTIAL CONSTRUCTION PROJECT; (B) THE TERMS OF THIS SECTION 14 REQUIRE TRADECONTRACTOR, IF ENROLLED AND PARTICPATING IN THE BHIP, T0 INDEMNIFY, HOLD HARMLESS OR DEFEND ANY OF THE INDEMNIFIED PARTIES FOR ANY CLAIM OR ACTION COVERED BY THE BHIP; AND (C) WHERE SUCH CLAIM 0R ACTION ARISES OUT OF SUCH RESIDENTIAL CONSTRUCTION PROJECT. TO THE EXTENT THE TERMS OF THIS SECTION 14 ARE DEEMED UNENFORCEABLE AS PROVIDED HEREIN, ANY OF THE INDEMNIFIED PARTIES SHALL HAVE THE EXPRESS RIGHT TO PURSUE AN EQUITABLE INDEMNITY CLAIM AGAINST TRADECONTRACTOR UNLESS THERE IS COVERAGE FOR SUCH CLAIM OR ACTION UNDER THE BHIP. 14.1 Notwithstanding anything in Section 13 to the contrary. Tradecontractor shall defend: indemnify and hold harmless the Indemnified Parties t0 the filllest extent permitted by law, from and against any and all claims, demands, causes of action, damages, costs, expenses, attorneys fees, injuries, losses, suits or liabilities arising from or out of a claimed defect in the design, construction, workmanship, materials or functionality 0f any work of improvement (collectively, “Defect Claims") , whether in law 0r in equity. including all costs of pre-litigation, litigation. mediation and arbitration and all consultant, expert and attorney fees an'sing out of, pertaining to, or relating to the scope of work 0f Tradecontractor howsoever caused, and regardless of any fault on the part of Tradecontractor including, but not limtied to, (1) the reasonable value of repairing the work 0f Tradecontractor, (2) the reasonable cost 0f repairing any damages caused by the repair efforts, (3) the reasonable cost 0f repairing and rectifying any damages resulting fiom the failure of the home to meet building standards, codes 0r industry standards, (4) the reasonable cost of removing and replacing any improper repair by the Tradecontractor. (5) reasonable relocation and storage expenses, (6) lost business income if the home was used as a pn'ncipal place of a business licensed to be Operated from the home, (7) reasonable investigative costs for each established Violation, and (S) all other costs or fees recoverable by this Agreement or by statute. except to the extent the damages arise out of, pertain to, or relate t0 the negligence of the Builder and/or Owner or their other agents, other servants, 0r other independent contractors who are directly responsible to the Builder and/or Owner, or defects in design furnished by those persons, or to the extent the damages do not arise out of, pertain to, or relate to the Tradecontractor‘s scope 0f work under this Agreement and all addenda to this Agreement. 14.2 Under Section 14.1 above, if applicable, Tradecontractor‘s duty t0 defend is immediate. It arises immediately upon mitten tender of a Defect Claim, 0r portion thereof, by an Indemnified Party to Tradecontractor. Tradecontractor’s obligations and duty to defend is as broad as allowed by law and applies whether the issue 0f the Indemnified Parties‘ liability, breach 0f this Agreement or other obligation or fault has been determined. Within ninety (90) days of Tradecontractor‘s receipt of the written tender, Tradecontractor is required to provide written notice t0 Builder and Ownar of its election to satisfy its defense obligation t0 the Indemnified Parties under this Section. Tradecontractor may choose to satisfy its defense obligation to the Indemnified Parties by electing either of the following choices: (a) Defend and Control Defense: Tradecontractor may elect to defend the Defect Claim with counsel of its choice. Tradecontractor will be required to defend and maintain control 0f the defense for any Defect Claim or portion 0f a Defect Claim to which its defense obligation applies. The defense by the Tradecontractor shall be a complete defense of the Indemnified Parties of all Defect Claims or portions thereof to the extent alleged to be cauSed by the Tradecontmctor. including any vicarious liability claims against the Indemnified Parties resulting from the Tradecontractor's scope of work. This defense obligation does not include Defect Claims or portions thereof resulting from the scope of work, actions 0r omissions of the Indemnified Parties or any other party. Any Vicarious liability imposed on the Indemnified Parties shall be directly enforceable against the Tradecontractor by the Indemnified Parties or claimant. (b) PaV an Allocated Share of Defense Fees and Costs: Tradecontractor may elect to pay an allocated share of the Indemnified Pamfies' defense fees and costs 0n an ongoing basis during the pendency of the Defect Claim. Tradecontractor is required to pay its allocated share within thilty (30) days of receipt of an invoice fiom the Indemnified Parties, including any amounts reallocated upon final resolution of the Defect Claim by settlement or judgment. The Indemnified Parties shall determine the allocation and shall allocate a reasonable share to each Tradecontractor to the extent the Defect Claim 0r portion thereof is alleged t0 be caused by the Tradecontractor's actions 0r omission regardless of whether the Indemnified Parties actually tender the Defect Claim t0 any particular tradecontractor or whether the panticular tradecontractor is participating in the defense. To the extent a Defect Claim or portion thereof is alleged to be caused by the Indemnified Parties‘ work, actions or omissions, the Indemnified Parties will also be allocated a share. If more than one tradecontractor shall be obligated t0 defend the Indemnified Parties, then the Indemnified Parties will allocate t0 each tradecontractor a share of such fees and costs on a pro rata basis 50 that all tradecontractors with a defense obligation will pay equal shares. This defense obligation shall not limit the defense and/or additional insured obligations 0fthe Tradecontractor's insurance carrier. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecontract Builder fly” MW» Initials M" W! Daie fig} ”/5/ Initials "W?“ j Date pmafwi f ’ f V 1’ «a f Edifion ate: rev. II/22/II((I0€#318222) -bjh @ mS&l RlS/mreflCONSTlPURi/i CTYVE COMWIUNHTESMM TARO - Glen Lomainfiirc - MafaroWastcr Contact DocleAYfl’BITA BOILEKPLA TE_],31.12‘ docx 7 14.3 Under Sections 14.1 and 14.2, above, only disputes regarding (a) Tradecont‘ractor's allocated share. and/or (b) Tradecontractor‘s failure to pay its allocated share. may be raised. A dispute regarding Tradecontractor's allocated share may be raised only after such share has been subject to reallocation upon full and final determination of the Defect Claim. Resolution of the dispute shall be stayed until after the Defect Claim is finally resolved. A11 such disputes are tolled. Any such dispute shall be resolved through binding arbitration. The parties may elect to retain a mutually selected arbitrator or conduct the arbitration in accordance with the Streamlined Arbitration Rules and Procedures of JAMS in effect at such time. Notice 0f the demand for arbitration shall be filed in writing with the other party and/or with JAMS. Unless otherwise agreed by the parties. the arbitration shall take place within thirty (30) days of the appointment of the arbitrator. The award rendered by the arbitratdr shall be final. binding and non-appealable. and judgment may be entered thereon in accordance with the applicable law of any court having jurisdiction thereof. Notwithstanding the foregoing, if the Indemnified Parties are bound to any alternative dispute resolution procedure with any homebuyers (or homeowners association), Tradecontractor agrees to be bound by, and to participate in~ such other procedures. to the extent the Tradecontractor's work is an issue in such other proceeding. 14.4 If a Tradecomractor fails to timely and adequately perform its defense obligations herein, said Tradecontractor waives any and all rights to challenge, contest or dispute the amount of reasonableness of any settlement of the Defect Claim reached by the Indemnified Panies or any other tradecontractor and the claimants. Said Tradecontractor shall be bound by the amount of any settlement of the Defect Claim reached by the Indemnified Parties or any other tradecontractor and the claimants. The binding effect of this provision shall in no way diminish or reduce the Tradecontractor’s right to defend itself or assert all available defenses relevant to its liability in any subsequent trial. ‘ 1n addition, upon Tradecontractor's failure to timely and adequately perform its defense obligations herein, the Indemnified Parties may, at their sole option, elect in writing either to: (1) treat this Agreement as continuing and enforce the same by specific performance; (2) seek compensatory and consequential damages, reasonable attomeys' fees and costs incurred to recover said damages and interest on defense and indemnity costs from the date incurred; or (3) increase Tradecontractor’s allocated share by fifty percent (50%), not as a penalty, but as an agreed, reasonable liquidated damage. The Indemnified Parties and Tradecontractor agree that at the time this AgTeement is entered into actual damages are difficult to calculate and that an increase in Tradecontractor’s allocated share by fifty percent (50%) shall be a reasonable approximation of actual damages incurred but without the expense 0r litigation. In the event of election by the Indemnified Parties to retain the liquidated damages set forth above, ten (10) days written notice to Tradeconu'actor shall be given. The liquidated damages identified above shall be paid to the Indemnified Parties upon written demand. Such liquidated damage will not be subject to reallocation. The Indemnified Panies may sue to collect such liquidated damages from Tradecontractor. 14.5 Upon full and final determination of the Defect Claim, Tradecomractor's allocated share of the Indemnified Parties' defense fees under Section 14.2(b) above will be reallocated to the extent the Defect Claim or ponion thereof to which the defense obligation applies is determined to arise out of, pertain to or relate to the negligence of the Indemnified Parties or the Indemnified Parties' other agents, other servants, 0r other independent contractors who are directly responsible to the Indemnified Parties. Should the Indemnified Panies fail t0 reallocate upon a Tradecontractor's request within thirty (30) days following final resolution of the Defect Claim, Tradecontractor may seek compensatory and consequential damages, reasonable attorneys' fees and costs incurred t0 recover said damages and interest on the fees from the date 0f final resolution of the Claim. 14.6 Upon written notice to Tradecontractor by Builder and/or Owner of any claim brought by a Homeowner pursuant to Civil Code Section 895 et. seq., Tradecontractor shall immediately acknowledge notice of such claim and shall submit written aclmowledgment to Builder and/or Owner not later than fourteen (14) days of receipt of such notice, and shall panicipate in the investigation, inspection and, if necessary, repairs to the work of Tradecontractor and all resulting damage an'sing out of work of Tradecontractor at Tradecontractor's sole cost and expense. Tradecontractor shall take all reasonable measures to ensure that its liability carriers are immediately tendered upon receipt of a notice of claim and shal} request its carriers t0 undertake all necessary action to facilitate the inspection and testing of Tradeconrractor's work and t0 the emem necessary, to obtain the participation of its carriers in connection with any agreed upon mediation concerning the Tradecontractor's work, materials or supplies. 14.7 Upon wn'tten demand made by Builder and/or Ovmer, Tradecontractor, within thirty (30) days of such written demand, shall provide copies 0f all job files, work orders, plans, specifications, reports, engineeling calculations, and all other documentation including but not limited t0 field notes, summaries. and photographs so as to ensure that Builder and/or Owner are in compliance With all legislation, regulations and law. It is understood and ageed to by Builder and/or Owner that 3.11 reasonable copying costs shall be borne by Builder and/or Oxmer. 14.8 Tradecontractor acknowledges, agrees and warrants that should Builder and/or Owner inspect any claimed unmet standards presented by the Homeowner, that TradeCOntractor shall complete an initial inspection and testing Within fourteen (14) days after aclmowledg'ment of the receipt of the notice of the claim presented by the Builder and/or Owner at a time and location agreed to by the Homeowner. A11 costs of the inspection and testing, including any damage caused by the Tradecontractor's inspection shall be borne $01er by the Tradecontractor. Tradecontractor shall also provide, upon written demand, written proofthat Tradecontractor has liability insurance to cover any damage or injuries occurring during the inspection and testing. Tradecontractor agrees that it shall restore the property to its pre-testing condition within forty-eight (48) hours after the completion of such testing. The Tradecontractor shall, upon request, allow the inspections to be observed and electronically recorded, videotaped or photographed by the Homeownen Builder and/or Owner, or their legal representative. 14.9 Should Tradecontractor believe it is necessary for a second inspection or testing to be undertaken, Tradecontractor shall submit to Builder and/or Owner in writing, within three days following the initial inspection, the reasons and basis for which a second inspection or testing is necessary. Subject to the approval provided by the Homeowner, Tradecontractor may conduct a second inspection or testing with and in the presence of Builder and/or Owner. Tradecontractor warrants that the second inspection 0r testing shall be completed Within forty (40) days of the initial inspection or testing. 14.10 In the event that Builder and/or Owner and/or any inspector retained by Homeoxmer and/or Builder and/or Owner determines that the Tradecontractor’s work is not in conformance with plans and specifications, or was improperly completed,“ or was By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions 0f this section. Tradecontra Builder v,“ “W I M W Initials 49% Daxefj/ia/fl/ff/ Initials wfa‘fi Date £35?”ny fff I Edition Date: rev. I 1/22/11(doc#318222) -bjlz @ ms&1 mSharemCONSWURLa CTIVE COMMLWITIESLMA TARo - Glen Lomanojysirc - MammWamr ammo: Docs1EXHIBITA 3011.5wa TE_1.31.12. doc»: 8 not in compliance with industry standards, codes, and/or regulations, Tradecontractor warrants? at its sole cost and expense, to undertake any and all repairs necessary t0 conect and repair the work upon wfitten demand by Builder and/or Owner. 14.11 Upon written demand made by Builder and/or Owner to repair the work of Tradecontractor, Tradecontractor shall. within thirty (30) days 0f the initial or, if requested, second inspection or tesfingé offer in writing to repair the work and to provide é. detailed, specific, step by step statement identifying the particular repair efforts and methodologies to be undertaken by Tradecontractor, explaming the nature, scope and location of the repair, and in setting a reasonable completion date for the repair. The offer to repair made by Tradecontractor shall also compensate the Homeowner for all damages recoverable to the extent caused by 0r arising out ofthe work of Tradecontractor. 14.12 In the event that the Homeowner elects the right t0 have its ovm contractor perform the repairs, Tradecontractor shall pay for all such repairs to its completed work and shall fully indemnify Builder and/or Owner for the cost of any and all such repairs if it is found by Builder and/or Owner that Tradecontractor is at fault. 14.13 Should the Homeowner, authorize Builder and/or Owner t0 proceed with the repair: Tradecontractor shall fully cooperate with Builder and/or Owner to ensure repairs are properly undertaken and completed with respect to the Tradecontractor’s work at the sole cost and expense of Tradecontractor. Nothing in this Agreement shall preclude Tradecontractor fiom pursuing claims of contribution or indemnity against any and all other tradecontractors for whom Tradecontractor believes is partly or wholly at fault in connection with the damage claimed by the Homeowner. 14,14 Tradecontractor warrants that in the event that the Homeowner authorizes the Builder and/or Owner 0r one of the alternative contractors to perform the repair, but not the Tradecontractor, Tradecontractor warrants that it will fully reimburse and indemnify Builder and/or Owner for any such repaim undertaken by the selected contractor to perform the repairs on Tradecontractor‘s work. Such payment must be made within thirty (30) days ofthe completion of the repair work. 14.15 Tradecontractor warrants that upon the election of Builder and/or Owner and/or Homeowner, Tradecontractor shall perform repairs as agreed to and set forth by the Parties arising out of mediation or, in the alternative, if mediation fails to resolve the dispute, upon the repair methodology chosen by the Builder and/or Owner. Such repairs shall be completed by Tradecontmctor within a reasonable time at its sole cost and expense. Builder will deduct all reasonable costs ofrepair fiom any Contractor Allocation owed to Builder as set forth in Section 15.1(f). 14.16 Tradecontmctor, in the event thax a resolution involves a repair by the Builder and/or Owner but not performed by Tradecontractor. shall pay for. fully reimburse, indemnify and render whole Builder andjor Owner for any repair costs incurred as a result 0f the repair effort agreed upon between Builder and/or Owner and Homeowner. Tradecontractor shall fiJIly compensate Builder and/or Ovmer of all damages resulting from the work which is subject t0 the repair so as to fiflly hold Builder and/or Owner harmless of any such damages. ln the event that Builder and/or Owner selects Tradecontractor to undertake repairs, Tradecontractor agrees to commence repairs within fourteen (14) days 0f the election made by Builder and/or Owner. Tradecontractor shall act with reasonable diligence in assisting in obtaining all necessary permits and to complete all work within the time prescribed by Builder and/or Owner. Tradecontractor shall ensure that the work done on the repairs is done with the utmost diligence, and that the repairs are completed as soon as reasonably possible, subject t0 the nature of the repair 0r some unforeseen event not caused by the Builder and’or Owner or the contractor performmg the repair. Every effort shall be made to complete the repair within one hundred twenty (120) days. The Builder and/or Owner shall, upon request, allow the repair of the Tradecontractor t0 be observed and electronically recorded, videotaped or photographed by the Homeowner, his legal representative, or by Tradecontractor. 14.17 In the event thaI the Homeowner elects a monetary settlemeng Tradecontractor shall pay fer all portions of the settlement reached with Builder and/or Owner to the ement is caused by, arises out of or is resulting from the Tradecontractor's work as determined by Builder and/or Owner or their reSpective inspector. 14.18 I11 the event that a mediation takes place between Homeowner, Builder and/or Owner, Builder and/or Owner shall agree t0 allow Tradeconu'actor to participate in the mediation. A11 costs of the mediator shall be shared equally between the Builder and/or Owner and Tradecontractor less any monies paid by Homeowner towards the cost of the mediation process. 14.19 The duties and obligations imposed upon Tradecontractor under this Section of the Agreement are not exclusive and are in addition to the duties and obligations imposed upon Tradecontractor under the remainder 0f this Agreement. SECTION 15: INSURANCE. Prior t0 commencement of any W'ork under this Agreement, Tradecontractor shall, at its sole expense, fully comply with the terms 0f this Section 15. 15.1 BROOKFIELD HOMES INSURANCE PROGRAM: Builder and/or Owner has established the Brookfield Homes Insurance Program, which, in the event Builder is enrolled therein, provides the following insurance COVerage for Builder, Owner and specified Tradecontractors, hereinafier called BHJP. a) GENERAL BHIP COVERAGE. BHIP is for the benefit of Builder and/or Owner, its officers. directors, agents, employees, divisions, subsidiaries, shareholders, partners, affiliated companies, and owners, any lender with an interest in said Project, and a1! other parties listed as indemnified panics under the Tradecontract Agreement including tradecontractors 0f all tiers who are specifically enrolled. Builder and/or Owner, at its sole discretion shall determine which tradecontractors are to be enrolled in BHIP, and such determination shall be binding. BHIP shall apply only t0 work performed at the project, unless otherwise indicated as par: of this Tradecontract Agreement. BHIP shall not or will not cover suppliers and/or subcontracts with a contract value less than an amount t0 be determined by Builder and/or Owner or any other tradecontractors, Builder and/or Owner elects to exclude. Unless otherwise directed by Builder and/or Owner in writing, the excluded tradecontractors and any By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. BuilderTradecontractor f r MM w Initials M” Date @924? Initials :fi Date fifiaifww '“M (M f / ‘ Edition Daze.- ye'i). 11/22/11 (doc#313222) -bjh @ ms&1 F:LSIwredlCONSflPURLACTfl/E COIMAMUNIYYESLMA TARO - Glen LomalOflG‘ite - IWararOLWaSter Contract DocleXHIBITA BOILERPLA TE_IA31. Ila‘ocx 9 tradecontractor performing work for the Project off the Proj ect site shall secure and maintain at their own cost. the insurance coverage specified in Sections 15.1 (g), i). ii). iii). 15.2, 15.3, 15.4, 15.5, 15.6‘ 15.7. 15.8. 15.9. 15.10. ' ' b) SPECIFIC BHIP COVERAGE. BHIP shall include General Liability insurance only. Tradecontractor shall be covered under the Project's General Liability insurance policy relative t0 Tradecontractor‘s work on the Project. Builder andfor Owner shall provide Tradecontractor an insurance certificate evidencing coverage. The furnishing of BHIP coverage shall in no way relieve or limit any responsibility, liability or obligation of Tradecontmctor imposed by the Contract Documents or by law including, without limitation, any defense or indemnification obligations which Tradeconrractor has t0 Builder and/or Owner, to the maximum enent allowable by law. Tradecontractor shall pay its pro-rata share of the cost of BHIP based on its total contract amount and either Tradecontractor's current rate for liability coverage or its Hazard Group designation as defined by Builder at Builder‘s sole discretion. c) BUSINESS AUTO LIABILITY AND WORKERS‘ COMPENSATION/ EMPLOYEE LIABILITY INSURANCE. Notwithstanding BHIP, Tradecontractors shall secure and maintain at their own cost insurance consistent with Sections 15.5, 15.6, & 15.7. d) BHIP PROCEDURES. Tradecontractors shall fully cooperate with Builder and/or Owner and its insurance administrator in connection with BHIP. Tradecontractor’s responsibilities shall include without limitation: i) providing all relevant, pertinent and necessary contractual, operational and insurance informaiion within a reasonable time, but no later than 45 days after the signing of the Agreement and representing and wan'anting that all such information shall be accurate and complete; ii) notifying Builder and/or Owner of all subcontracts awarded. However, such notification does not give rise to any insurance coverage unless said Tradecontractor‘s tradecontractor is specifically enrolled in BHIP; and, iii) complying with safety, accident prevention and claims reporting and handling procedures. e) DEDUCTION OF BHIP INSURANCE COSTS. In consideration for Builder and/or Owner providing the coverage specified in BHJP, Builder and/or Owner, and/or its insurance administrator shall deduct insurance costs from the amounts otherwise due from Builder and/or Owner to Tradecontractor‘ As specified in 15.1(f) below, Tradecontractor’s insurance rates shall be calculated based upon Tradecontractor’s Hazard Group designation. Builder and/or Owner' calculation shall be conclusive. except for manifest mathematical errors. f) TRADECONTRACTOR CONTRACTOR ALLOCATION. Following any applicable warranty period. Tradecontractor agTees that for any and 3.11 claims arising out 0f 0r in any way connected with the acts 0r omissions 0f Tradecontractor or Tradecontractor‘s scope of work or services at the project, and after written notice to Tradecontractor by Builder or Owner. Tradecontractor shall pay t0 Owner or Builder either the actual repair costs and any other fees and costs incurred by Owner or Builder that reasonably relate to Tradecontractor's proportionate share of alleged liability, per Occurrence. up to a maximum amount of the contractor allocation at Builder‘s sole discretion, as defined below. If or to the extent Tradecontractor fails t0 timely pay the amounts due under this Subsection in response t0 Builder's mitten demand, Builder may use the following methods t0 collect amounts due from Tradecontractor: Builder may back-charge Tradecontractor. may withhold from monies otherwise owing t0 Tradecontractor, or may collect by any other lawful means the amounts owed by Tradecontractor pursuant to this Subsection, including any incurred attorney fees and costs. Tradecontractor’s obligation to Builder/Owner for any contractor allocation is separate and independent from Builder/Ovmer’s obligation to the BHIP insurer for any contractor allocation. Tradecontractor‘s contractor allocation shall not exceed its hazard group category designation for each “Occurrence" as defined in BHIP. Tradecontractor shall either be identified as being placed in a Hazard Group category with a Contractor Allocation as described (i) on cover sheet of each Addendum entered into pursuant to this Master Tradecontract Agreement, or (ii) 011 the cover sheet of this Master Tradecontract Agreement. g) LIMITATIONS ON COVERAGE. Neither Builder nor Owner makes any representation or warranty to Tradecontractor as to the adequacy of coverage for Tradecontractor under the BHIP insurance as to risks and exposures faced by Tradecontractor. Tradecontractor acknowledges that the insurance available is a fixed amount which will be shared by multiple insureds. Neither Builder nor owner assumes any obligation to Tradecontractor concerning any insurance other than that described herein. Tradecontractor acknowledges that a copy ofthe current policy form of the BHIP policy was made available to Tradecontractor before execution of this Agreement, and that Tradecontractor has conducted such investigaiion and evaluation of such coverage as it deems fit, with insurance and legal professionals of its own choosing, prior to execution of this Agreement, and has satisfied itself as to the coverage provided and the suitability of such coverage to its individual needs. Tradecontractor acknowledges that the terms of coverage are set fonh in the BHIP policy, and that descriptions of such coverage terms herein 0r in other infonnation or statements (written or oral) provided by Builder, Owner, 0r their agents do not alter, amend or supersede any terms contained in the policy itself. Tradecontractor acknowledges and agrees that the BHIP policy does not apply to any work perfoxmed by Tradecontractor for any person other than Builder or Owner or to any work or activities of Tradecontractor other than Tradecontractor's work on the Project. Tradecontractor fimher acknowledges and agrees: that neither Builder nor Owner is an agent or fiduciary of Tradecontractor with respect to procurement of insurance; that neither Builder, Owner, the Project Iender(s),‘ nor the insurance program administrators are agents, partners 0r guaxantors of any By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. Tradecontracpy/ Mr" Builder W?“ t «f A Mm“, Initials »«‘;zfigfl';5f Date [Kg?flfy Initials (/y Date “@57pr wyfl» ‘ ,f i,- r . . f .Edman Daze: #év. 11/22/11(doc#318222) 4);]: @ ms&1 F?HSImred'lCONSflPURLACYYI/E COMMUNITIESUPMTARO - Glen LomalOflsire - MamralMaster Contract DocsIEXHIBITA BOILERPLA TEJjLIldocx 10 msurance company providing such coverage; and that neither Builder nor Owner is responsible for anv disputes between or among any such insurer and Tradecontractor or other program participants Tradecontracto; mav and ghall maintain any and all additional insurance as it deems fit for its own unique insurance needs. so as to pi’otect Its own interests, but shall do so at no cost to Builder or Owner. Existence of coverage for Tradeconfiactor under the BHIP policy shall in no way relieve or limit any obligation or liability of Tradecontractor as imposed bv this Agreement including, without limitation, indemnification obligations, to the maximum ement allowable b): law. In the event Builder or Tradecontractor is not enrolled in the BHIP, prior to commencement of any Work under this Agreement or, if enrolled, upon the occurrence of any event that renders the BHIP inapplicable to the subject Projecp within thirty (30) days notice by Builder and/or Owner of such event, Tradecontractor shall obtain Comprehensive General Liability coverage as set forth below: i) COMPREHENSIVE OR COMIVERCIAL GENERAL LIABILITY INSURANCE. Tradecontractor shall maintain Comprehensive or Commercial General Liability Insurance 0n an "occurrence" basis. naming Builder/Owner as an additional insured (with Completed Operations coverage), with reasonany acceptable deductibles, not to exceed Ten Thousand Dollars ($10,000), with a combined single limit for bodily injury and property damage of Two Million Dollars ($2,000,000), or limit carried whichever is greater, covering Operations, Independent Tradecontractors, Products and Completed Operations (for 10 years after Final Acceptance), Contractual Liability specifically coven’ng the indemnification contained in Sections 13 and 14 ofthe Agreement. Broad Form Property Damage including Completed Operations, Severability of Interest and Cross Liability clauses, Prior Acts Exclusion stating the General Liability policy shall not include any limitation of coverage and/or exclusion including but not limited to Prior Acts Exclusion and/or and excess liability insurance policies. ii) ADDITIONAL INSUREDS. In the event Tradecomractor cannot obtain additional insured endorsements as specified herein and in particular under Paragraph 15.1(g)(i), Tradecontractor shall immediately agree to provide to Builder and/or Owner proof of the unavailability of such additional insured endorsements by the submission of one letter fiom one licensed insurance broker. 1n addition, Tradecontractor shall agree to fully defend, indemnify and otherwise hold Builder and/or Owner harmless for any claims made by any third party as against Builder and/or Project Owner an'sing out of the completed work of Tradecontractor. subj ect to the provisions set forth in Sections 13 and 14 of this Agreement. iii) PRIMARY ENDORSENEENT. The following language must be included on the endorsement: "This Insurance is primary and any other insurance maintained by such additional insureds is noncontributing with this insurance as respects claims or liability arising out of or resulting fiom the acts or omissions of the named insured, or of others performed on behalf ofthe named insured". 15.2 GENERAL INSURANCE REQUIREMENTS. Tradecontractor shall not commence any work until it obtains a1] insurance required to be obtained by Tradecontractor under this Agreement. Builder will not permit Tradecontractor to commence any portion of the work on the Project until Tradecontractor has complied with all 0f the insurance requirements descn’bed in this Section 15. A11 Insurance described under this Section 15 to be carried by Tradecontractor will be maintained by Tradecontractor at its sole expense with insurance carriers licensed and approved to do business in California, having a general policyholders rating 0f not less than an "A“ and financial rating of not less than "8" in the most current Best's Key Rating Guide. In n0 event will such insurance be terminated or otherwise allowed to lapse prior to termination of the Agreement or such longer period as may be specified herein. Should Tradecontractor fail in whole 0r in part t0 comply with any ofthe requirements set forth in this Section 15, such a failure shall be deemed a material breach to this Agreement thereby entitling Builder to all available legal remedies including. but not limited to, those set forth in Section 6. Tradecontractor may provide the insurance described in this Section 15 in whole or in pan through a policy or policies covering other liabilities and projects of Tradecomractor: provided, however, that any such policy or policies shall: (a) allocate to the Proj ect the full amount of insurance required hereunder, and (b) contain, permit or otherwise unconditionally authorize the waiver contained in Paragraph 15 0f this Section 15.7. 15.3 EVIDENCE OF INSURANCE: As evidence of specified insurance coverage, Tradecontractor shall deliver and Builder will accept certificates issued by Tradecontractor's insurance carrier applicable to Builder and produce for review such policies in force for the specified period. Such evidence shall be delivered to Builder's corporate office located at 12865 Pointe Del Mar, Suite 200, Del Mar, CA 92014, promptly upon execution of this Agreement or prior to commencement of work, whichever occurs earliest. Each policy and certificate shall be subject to review by Builder and shall previde that such policy shall not be subject to material alteration to the detriment of Builder or Tradeconflactor 0r cancellation without thirty (30) days' notice in writing to be delivered by registered mail to Builder's corporate office located at 12865 Pointe Del Mar: Suite 200, Del Mar. CA 92014. 1n no event shaII Builder's review of Tradecontractor‘s cenificates and insurance policies serve as any waiver and/or estoppel , in law or in equity, by Builder and/or Project Owner toward any breach by Tradecontractor of the specific insurance requirements set forth herein. In the cancellation section of the Certificate of Insurance the Tradccontractor shall delete the words “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the Company, its agents or representatives." Should any policy expire or be canceled before the expiration ofthjs Agreement and Tradeconu‘actor fails immediately t0 procure other insurance as specified, Builder reserves the right. but shall have no obligation, to procure such insurance and to deduct the cost thereoffiom any sum due Tradecontractor under this Agreement. Builder reserves the right to withhold payment should Tradecontractor fail to comply with all the insurance provisions described in this Paragraph 15. 15.4 DAMAGES. Nothing contained in these insurance requirements is to be construed as limiting the type. quality or quantity of insurance Tradecontractor should maintain 0r the emem of Tradecontractor‘s responsibility or liability for payment of damages resulting from its operations under this AgTeement. The carrymg of the insurance as specified herein shall not be By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to 2nd agreement with the provisions of this section. Tradecontract Builder NNN- w a “mm Initials (,ézxj/ Date @7/Z’x/ Initials “1%” Date g “(V’fo a f» x 3/ f‘ / KW” Edition $m&*"rev. 11/22/11(doc#318222) -bjh @ ms&1 E13]:aredfiCOMS‘TlPURL4C77VE COMMUNIYYESUW TARO - Glen LomalOflfsite ~ MatarolMaxter Contract DocleXHIBITA BOILERPLA TE_].31.12.docx 11 construct} to be a limitation of liability on the part of the Tradecontractor, nor shall it relieve Tradecontractor from any liability under tins Agreement as a matter of law. 15.5 AUTOMOBILE LIABILITY INSURANCE. Tradeoontractor shall maintain any and all owned. hired and non-owued automobile liability insurance covering all use of all automobiles, trucks and other motor vehicles utilized'by Tradecontractor in connection withvthis Agreement with a combined single limit for bodily injury and property damage of One Million Dollars ($1,000,000), or limit carried, whichever is greater. 15.6 WORKERS“ COMPENSATION INSURANCE Tradecontractor shall maintain Workers' Compensation Insurance, including (a) Employer's Liability at a minimum limit 0f One Million Dollars ($1,000,000) for a1} persons whom it employs in carrying out the work under this Agreement. Such insurance shall be in snict accordance with the requirements of the most current and applicable Workers' Compensaiion lnsuranoe Laws in effect from time to time at the Project site. 15.7 WAIVER OF SUBROGATION. Tradecontractor hereby waives all rights of recovery whether by subrogation or otherwise, including but not limited to recovery because 0f deductible 01' Contractor Allocation clauses, inadequacy 0f limits 0f any insurance policy. limitations or exclusions 0f coverage. against Builder, Project Owner(s), the Project Iender(s), the insurance program administralor. and their respective officers. directors, agents and employees, and any other contractors or Uadecontractors which are insured under the BHIP at the time the loss occurs, or other individual or entity performing work or rendering services 0n behalf of Builder and/or Project Owner in connection with the planning, development and construction of the Project that is the subject of the Contract Documents, other than contractors or tradecontractors which are not insured under the BHIP at the time the loss occurs. Tradecontractor shall also require that 3.11 insurance policies obtained by Tradecontractor or its sub-tradecontractors relating to any work pursuant to the Contract Documents shall include clauses providing that each insurer waives any rights of recovery by subrogation, 0r otherwise, against Tradecontractor and the parties referenced above in this Subsection. Tradecontractor shall require similar WTitten express waivers and insurance clauses from each of its sub-tradeoontractors. This waiver by Tradecontractor shall apply whether or not Tradecontractor is an insured under the BHIP at the time such loss occurs. 15.8 AIRCRAFT LIABILITY INSURANCE, If the work involves aircraft, Tradeconu’actor shall maintain a combined single limit for bodily injury and property damage liability of not less than Ten Million Dollars (810,000,000) per occurrence, or limit carried, whichever is greater, covering owned and non-owned aircraft. The whole of the aircraft shall be insured as required by Tradecontractor or Builder. 15.9 RELATIONSHIP OF INSURANCE COVERAGE. The insurance required pumuant to this Section 15, shall, as far as applicable, specifically insure Tradecontractor's indemnity obligations pursuant to Sections 13 and 14. and, in particular and without limitation, the liability insurance required pursuant to Section 15 shall insure Tradecontractor’s obligations pursuant to Sections 13 and 14. However, Tradecontractor's obligations pursuant t0 Sections 13 and 14 shall not be limited to the amount of insurance required of or carried by Tradecontractor pursuant to Section 15. 15.10 AUDIT RIGHTS. If Builder fails t0 enforce any of these insurance requirements, such failure shall not constitute a waiver of such requiIements nor shall any waiver 0f any provision hereof be effective unless made in writing and signed by Builder. 15.11 SUB-TRADECONTRACTORS. Builder and/or Owner agrees to add sub-tradecontractors as insureds under the BHIP pursuant to the tenns, conditions, limitations and exclusions ofthat policy as in effect from time to time, with respect to the work performed pursuant to this Agreement provided that: (a) Tradecontractor is an insured under the BHIP, and Tradecontractor requires all 0f its tradecontractors to acknowledge, in writing, that all the provisions within this Section 15 are equally applicable to Tradecontractor’s tradecontractors; and (b) Tradecontractor requires its tradecontractors to submit an accurate estimate of their costs savings as a result 0f being added t0 the BHIP, and Tradecontractor reflects such savings as part of Tradecontractor's deductions for BHIP insurance costs. 15.12 AUDIT RIGHTS. Upon three (3) days advance written notice, Builder shall have the right to audit Tradecontractor’s books and records to determine the accuracy of Tradecontractor’s reporting and payments relating to insurance coverage. SECTION 16: TRADECONTRACTOR'S PERMITS AND LICENSES. Except as otherwise expressed and provided in this Agreemant, Tradecontractor will obtain all consents, approvals. licenses or permits required by any governmental authority having jurisdiction over the Project or any part thereof, including plans and specifications. The costs of all consents. approvals, licenses or permits and the payment of all fees relating thereto shall be paid by Tradecontractor except those as to which Builder has expressly agreed in writing either to obtain and pay for, 0r to reimburse Tradecontractor therefore, In jurisdictions where Builder has been required to obtain a master permit covering, in pan, work to be performed by Tradecontractor, Builder may deduct the pro rata cost of Tradecontractor's portion 0f said permit from the contract nce. EECTION 17: INSPECTION AND REINSPECTION. I An authorized representative of the Tradecontractor will accompany Builder on any inspection tours which may" be required by Builder or any governmental agency having jurisdiction thereof. Tradecontractor shall be chaIged for all re-inspecnons resulting from unacceptable materials and workmanship. SECTION 18: PREVENTION OF LIENS. 18.1 Tradecontractor agrees to pay when due all claims for labor and/or materials supplied 0r furnished hereunder, and to prevent the filing of any lien by mechanics or materialmen. or the institution 0f any attachments, garnishments or suits involving the title of the property upon which the improvements are erected. Tradecontractor agTees within five (5) days after receipt of wntten notice? by certified mail or comparable means of delivery, to cause the effect 0f any such suit or lien to be removed from the By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions of this section. Tradecontracggy‘f _ Builder W ,,,,,M ~ v“ Initiais «1% y Date éfl’éfifléw Initials fi/fiw Date 7 r Edition «bare.- r/ev 11/22/11 (doc#318222 47]}: @ ms&1 EisharedHCOMS‘flPl/RLACHVE COMMUNITIESUW TARO - Glen Lomaloffsile - MataroLMaster Contract DacsLEXHIBITA BOILERPLA TE_I.3J.12.[Iocx 17 premises, and in the event the Tradecontractor shall fail t0 do so, Builder is authorized to use whatever means it may deem best to cause said lien, attachment or suit, together with its effect upon the title, t0 be removed, discharged, compromised or dismissed, and the costs thereof. together with reasonable attorney's fees, shall become immediately due Builder. Builder shall be entitled t6 withhold 150 percent of all outstanding liens filed by Tradecontractor‘s tradecontractors and/or suppliers until appropriate Mechanic's Lien Release Bonds 0r recordable releases 0fthe same have been provided to Builder. Tradecontractor may litigate anv such lien or suit, provided it causes the effect thereof to be removed from the premises and executes and delivers to Builder Such affidavits, contracts. bills, records, accounts, em, as Builder may deem necessary for its protection in such event. 18.2 In the event Builder is served with any Writ of Attachment, Writ of Execution, Notice of Levy (Federal or State), or other legal process for any debt or alleged debt of Tradecontractor at any time during the period of this Agreement prior to completion, Builder shall automatically be entitled to keep and retain any funds or monies then due Tradecontractor for work and maxefials furnished and/or previously billed and approved but unpaid to Tradecontractor. It is understood and agreed that the purpose of the preceding sentence is to guarantee that Builder shall have sufficient funds with which to compiete Tradecontractor’s duties under this Agreement if the suit 0r levy out 0f which the above legal process arose should, in Builder's opinion, make it difficult or impossible for Tradecontractor to finish the work herein required. Service upon Builder 0f such process shall be deemed a breach of this Agreement and Builder shall give Tradecontractor five (5) days written notice to remove said levy, and Tradecontractor's failure t0 do so shall entitle Builder to the same rights as set forth in Section 6 of this Agreement. SECTION 19: ASSIGNMENT OR SUBCONTRACTING. Tradecontractor shall not assign or subcontract any portion of this Agreement, or the proceeds thereof, without first obtaining permission in writing from Builder and then only subject to the provisions 0f this Agreement. SECTION 20: ATTORNEYS FEES. If either party to this Agreement institutes litigation or arbitration with the other party, or against the surety of such party. arising out 0f the terms and conditions of this Agreement, or performance under this Agreement, the prevailing party shall be entitled to recovery from the other party, all associated costs, including but not limited to, costs of investigation, court costs and all reasonable attorneys“ fees incurred in good faith. Unless judgment goes by default. the attorneys' fees incurred by the prevailing party shall be presumed reasonable and shall be awarded. It is the intention of the parties to fully compensate the prevailing party for all attomeys' fees paid or incurred in good faith. SECTION 21: SURETY BOND. If requested by Builder for any reason whatsoever, deecontractor further agrees that it will. within ten (10) days from written notification by Builder, provide Builder with a bond, conditioned upon faithful performance of this Agreement in all its particulars and/or a labor and material bond, duly executed with a surety company acceptable to Builder, as surety. and in form and content acceptable to Builder. Builder will reimburse Tradecomractor for the expense of such bond up to one percent (1 %) of the total contact price. If a bond is required and Tradecontractor fails or refuses to provide such a bond within ten (10) days after request, such refusal shall be sufficient grounds for termination as set forth in Section 6 ofthis Agreement. SECTION 22: SUPERVISION. 22.1 The Tradecontractor, 0r its representatives, shall exercise full time general supervision in and over all phases 0f its operation to ensure correct performance ofthe Scope of Work. Builder, or its representatives, shall have access t0 any and all parts of the Tradecontractor's storage facilities. including but not limited t0 the construction grounds. and may at any time inspect sample, test 0r require tests to be taken 0n any materials furnished or ordered to be used in the construction of the units described in the Contract Documents. 22.2 The Tradecontractor shall be responsible to and answer directly to Builder, or its representatives, for the acts or omissions of its employees and of all persons directly 0r indirectly employed or retained by it in connection with its work under the Contract Documents. 22.3 The Tradecomractor shall at all times respect the judgment and authority of Builder representatives acting in the capacity 0f Project Superintendent. The Tradecon‘n’actor shall report to Builder representatives in writing any and all criticism materials shortages, labor trouble 0r other conditions or circumstances which in any way affect the performance of its duties 0r completion of the job. SECTION 23: PLANS AND SPECIFICATIONS 23.1 Tradecontractor shall comply with all City, County and Federal ordinances, statutes, including all applicable building codes and functionality standards as set forth in Civil Code Sections 896 and 897, and shall also comply with all manufacturer specifications and requirements. To the extent there is any conflict between the plans and specifications. applicable building codes, engineering reports and/or the functionality standards as set forth in Civil Code Sections 896 and 897, Tradecontractor m’ll perfonn to the strictest standard(s). N0 work is to be deemed complete until final inspection and approval by appropriate public agencies, as well as acceptance by Builder. Such acceptance and/or payment by Builder shall not bar any claim against Tradecontractor for defects in workmanship or materials or deviations fiom said plans, drawings or specifications or from said rules, regulations and requirements. Builder assumes no liability for failure of the plans and/0r specifications to comply with any requirements. and it is conclusively presumed that Tradecontractor is familiar with all of said requirements and that the work to be perfonned or the materials to be By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions 0f this section. V, Tradecontmaar’ Builder WM,“ W m Date é (2;; /5Wfl5 InitialsMx/fi’ Date j ”(W‘Vij' ‘ x / / Initials Edition Date: rev. 11/22/11 (d0c#318222) -bjh @ ms&l RiSharea‘KCONSflPDRMCTII/E COMMUJWYYESUWA TARO - Glen LOmmOf/sire - MatarolMaster Contract DacsLEXHIBITA BOILERPLA TE_I.3I.12.docx 13 furnished hereunder by Tradecontractor are to be in strict accordance with said requirements, irrespective of the provisions 0f the plans and/or specifications. 23.2 Tradecontractor shall bear the entire expense of complying with this section of the Agreement and shall receive no extra or additional compensation therefore. 23.3 It shall be the‘ responsibility of the Tradecontractor to check all figures, measurements and any work 0f a prior Tradecontractor (contracted to perform the same Scope of Work) prior to commencing work, and any discrepancies apparent to him must be reported in writing to Builder immediaiely for adjustment. FailLu'e t0 comply in this respect, and any additional costs resulting fiom noncompliance, shall be the responsibility ofthe Tradecontractor. 23.4 It shall be the responsibility 0f the Tradecontractor to submit for approval by Builder and/or its Architect any necessary shop drawings, diagrams, samples. material lists, brochures, eta, at Tradecontractor’s sole expense. Said submittal shall conform to the Contract Documents. If the submittal deviates from the Contract Documents, it shall be the obligation of the Tradecontractor to give notice in writing to Builder of the deviation. Ln the absence of such notice, any approval by Builder or its Architect of a submittal which deviates from the Contact Documents shall be void at the sole discretion of Builder and the Tradecontractor shall be responsible t0 Builder to bring its work into compliance with the Contract Documents and for any cost or damage which results fi'om the deviation. SECTION 24: QUALITY~ MATERIALS AND WORKMANSHIP. 24.1 Whenever any manufactured article, implement or series 0f articles or implements is mentioned in the specificalions by name. trade 01' manufacturer's name, it is intended t0 establish a standard 0f merit and quality. The intent 0f this definition is t0 require quality materials and workmanship; however, substitutes 0f equal merit may be used by the Tradecontractor. but only upon the written consent of Builder or its authorized representative. Under no circumstances shall a substitute material be used which will not conform to requirements set forth in the Contract Documents. 24.2 It is the responsibility of the Tradecontractor t0 inspect all materials for manufacturer's defects or transport damage prior to installation. A11 defective or damaged materials will be rejected. Upon the completion 0f each unit, Tradecontractor shall inspect all work performed and repair immediately any and all unacceptable workmanship. Tradecontractor shall notify Builder 0r its representative 0f the completion 0f each unit, and Tradecontmctor will repair or replace any workmanship or materials Builder deems in its sole discretion unacceptable. SECTION 25: CHANGES TO PLANS AND SPECIFICATIONS. 25.1 Should any changes to the plans and the specifications be required after the signing of the Contact Documents, it shall be the responsibility of the Tradecontractor to advise Builder in writing of the effects upon its portion of the work under this Agreement. The Tradecontractor shall perform no additional work nor shall it decrease its obligation under the Agreement without the written consent of and compensation adjustment fiom Builder. In the event of any dispute arising between Builder and Tradecontractor over the value of extra work, or whether certain work is "Extra" or within the scope of this Agreement, it shall be the obligation of Tradecontractor t0 complete the disputed work under protest. Any refusal t0 perform disputed work shall constitute a material breach ofthis Agreement authorizing Builder to resort to its remedies set forth in Section 6 ofthis Agreement. 25.2 In the event the Tradecontractor proposes a change or deviation from the plans and specifications and Builder agrees with the proposed change or deviation, it shall be the obligation of the Tradecontractor to indemnify Builder for any increased costs incurred by a Builder as a result of any such change or deviation proposed by TradecontractOr including, but not limited to, architectural or engineering fees. SECTION 26: GUARANTEES. 26.1 Tradecontractor does hereby expressly guarantee the Owner, Builder, and their successors in interest in the work. against any loss or damage arising from any defect in maxerials furnished or workmanship performed underor pursuant t0 this AgTeement for a period coterminous with Builder“ responsibility t0 its successors in interest, whether express or implied by law. Tradecontmctor acknowledges that it is familiar with and has reviewed the Builder's homeovmer Fit and Finish Limited One-Year Wananty and is aware that it is available in Builder's corporate office for review. A longer period may be required by applicable law; in which case the guarantee period shall correspond with the guarantee required by applicable law. In no event, however, shall the guarantee period be less than one (1) year fi’om the date of the close 0f escrow. 26.2 It shall be the responsibility ofthe Tradecontractor, dun'ng construction of all phases 0fthe Project, to contact Builder 0r its representative daily to receive any and all notices 0f discrepancies. The Tradecontractor shall immediately arrange for the correction of any and all such discrepancies and shall notify Builder upon completion of the work necessary t0 correct the discrepancy within two (2) business days after notification. Payments may be withheld pursuant to Section 2 until such time as the discrepancies are eliminated. If the Tradecontractor does not act promptly to correct such deficiencies, Builder may independently arrange for the correction of any andfor all such discrepancies and for payment 0f the cost thereof. Builder shali have the right to back charge such costs or setoff the amount thereof against any sums owing Tradecontractor hereunder 0r project on which the Tradecontractor performed work and during the guarantee period. To correct any and all discrepancies and defects in workmanship and/or malerials performed or supplied by Tradecontractor on the work of construction, within five (5) business days after notification of such discrepancies and defects by Builder unless Tradecontractor is notified of a claim as set foxth in Sections 14.2 through 14.16. Tradecontractor shall notify Builder immediately upon completion 0f work performed 0r materials supplied necessary t0 eliminate the discrepancies and defects. Should the Tradecontractor fail to comply With the Builder discrepancy notice within five (5) business days after notification, Builder may independently arrange for the correction of any and/or all such By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent t0 and agreement with the provisions 0f this section. Tradecontract Builder w“ I Initials W Dateff/fl7/4f” Initials w Date fif/Vy”“ é/ ’77iz’ Edition Dare: rev. 1 1/22/11 (doc#318222) -bjh @ ms&l E‘LSDmedICONSflPU'RlACTIVF COJWM'ZHV'ITIESLW TARO - Glen Lomalefsire - M’amroififllfler Contract DocleXHIBITA BOILERPLA TE_I.3]. J2.a'0cx 14 discrepancies and the Tradecontractor shall reimburse Builder for the cost thereof. Builder shall have the right to back charge such costs 0r setofl‘ the amount thereof agamst any sums owmg Tradecontractor hereunder or arising out of other projects or phases of this Project. 26.3 Nothing contained in Sections 26.1 through 26.2 shall limit Tradecontractor‘s liability to Builder as provided for in Sections 13 and 14. SECTION 27: WARRANTY. 27.1 Tradecontractor agrees t0 perform all work in a first class, workmanlike manner. At a minimum, all work should meet the fimctionality standards 0f Civil Codes Section 896 and S97 and be equal t0 the HUD/FHA Minimum Property Standards, in accordance with all Municipal, County and State Building Codes, and in accordance with the terms and conditions as outlined in the contract documents. 27.2 Tradecontractor expressly warranties its work shall be free of any defects in materials and workmanship for all applicable warranty periods as set forth in Civil Code Sections 896 and 900. This warranty shall be in addition to all other rights and privileges which the Builder may have under any other law. Neither final payment nor any provision in the Contract Documents shall relieve the Tradecontractor 0f responsibility for faulty materials or workmanship. 27.3 Within sixty (60) days of signing this Agreement, Tradecontractor shall provide t0 Builder all warranties for manufactursd products that Tradecontractor is obligaied to install as part of its scope ofwork as set forth herein. SECTION 28: NOTICES. Any and all notices or other communicalions required 01' permitted by this Agreement 0r by law to be served on, given t0 0r delivered t0 either party hereto (Builder and Tradecontractor), by the other party shall be in writing and shall be deemed duly served, given 0r delivered when (i) personally delivered t0 the party t0 whom it is addressed; (ii) deposited in the U.S. Mail, first class postage prepaid, addressed to Builder 0r Tradecontractor at the addresses herein before set forth; or (iii) sent by telegram to Builder or Tradecontractor at the addresses hereinbefore set forth. SECTION 29: MISCELLANEOUS. 29.1 Tradecontractor further agrees to hold Builder and the Owner and their officers, directors, agents and employees harmless from any expense 0f any nature arising out of any and all claims (including, but not limited to, claims that may be presented by virtue of any contract or employment under the Tradecontractor) for union welfare, pension, vacation, apprenticeship, ovmer-operator, health and welfare, and related types of payment obligations connected with the job herein referred to, whether or not welI-founded. 29.2 In addition to the provisions and remedies contained in Section 6. 0r any other provisions hereinbefore stated, Builder may terminate this Agreement with the Tradecontractor or its tradecontractors (and the Tradeconuactor shall so provide in contracts with its tradecontractors), in the event thaI the Tradecontractor or its Tradecontractors are listed by the administrative office 0f the appropriate health and welfare: pension, vacation or apprentice funds as being delinquent in payment, or payments, t0 said fund or funds regardless of the job in connection with which the alleged delinquency occurred (which termination shall be considered “fer cause"). If this Agreement is terminated pursuant to this provision, Tradecontractor shall be obliged to pay the entire cost 0f completion of work called for by this Agreement and/or tradecontractor contract(s) Whether Builder has said work completed 0n a time and material basis 0r lets a new contract for completion ofthe work. If Builder elects not to terminate, pursuant to this provision, Tradecontractor appoints Builder (and Tradecontractor shall similarly bind his tradecontractors to do so) as Tradeconfiactor's agent to otherwise be required to pay to Tradecontractor. Builder's detenninaiion as to amount(s) to be paid, if any, shall be final‘ 29.3 The Contract Documents should be considered complimentaIy to each other, and what is called for in one shall be binding and enforceable as if called for in all. 29,4 The term "Tradecontractor" refers to the firm or individual, 0r series 0f individuals, or corporation, who is obligated to perfonn the obligations set forth in any phase ofthe Agreement so endorsed by it or under its power of attorney. 29.5 If any provision of this AgTeemenL or portion thereof, is determined by a court t0 be invalid, that determination shall not serve to invalidate the remainder ofthis Agreement 0r the remainder 0f provisions. 29.6 This Agreement shall be construed and enforced in accordance with the laws of the State of California. 29.7 There are no understandings 0r agreements except as herein expressly stated. Time is 0f the essence for this Agreement. This Agreement shall not be interpreted for or against either party, but in accordance with its fair meaning. No court has the power or discretion to do anything other than to enforce the plain meaning of each contract provision. No legal theory shall or may ever be applied t0 avoid, circumvent or "get around" the plain meaning 0f this Agreement. 29.8 Tradecontractor's Agreement not to Contract: The parties acknowledge that Tradecontractor may come into contact with Owners of specific lots. Tradecontractor agrees that Tradecontractor or Tradecontractor’s employees, agents or representatives shall not contract directly With any prospective or current homeowner prior to close of escrow of Builder’s homes. Tradecontractor further acknowledges that violation of this provision is grounds for termination as is defined in Section 6 herein. By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions of this section. Tradecontract Builder EV" m fl “W Initials ”<4 Dateéé’23¢; Initials fff/J Date j ”fiflf "' Editionégate: rev 11/22/11 (doc#318222) -bjI1CwCms&l F. lSIIaredlCONSTLPURIACTIVE C0MMLUVITIESI M’ATARO- Glen LomalOf/site - :WatarolM’aSta‘ Con tract DocxlEXHIBITA BOILERPLA TE_I.31. 12.doc‘x 15 SECTION 30: ARBITRATION. 30.1 If any dispute shall arise between Builder and/or Owner and the Tradecontractor pertaining in any manner to the construction or interpretation of this Agreement, or to the rights or obligations 0f the parties hereunder: or to the breach hereof which the parties are unable to settle by mutual agreement, Builder and/or Ovmer shall have the exclusive option either to have the dispute determined by court or by mediation and/or arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Builder and/or Owner shall exercise said option by commencing a court action or by commencing an arbitration proceeding. If Tradecontractor first commences a court action with reSpect to a dispute which Builder and/or Owner desires to have determined first by an arbitration proceeding, or if Builder and/or Owner desires to have first determined by com action, Builder and/or Owner shall have the right to have said court action or arbitration proceeding stayed if Builder and/or Ovmer promptly shall commence the arbitration proceeding or court action desired by Builder and/or Owner. Judgment upon the award in any arbitration proceeding may be entered in any com havingjurisdiction thereoi The prevailing pafly (as determined by the court or arbitratofis» shall be entitled to reasonable attomey fees fiom the other pany in an amount to be fixed by the court or arbitrator(s). The arbitrator(s) in any arbitration proceeding shall have the right to allocate fees between the parties or to charge all of such fees to one party, as the arbitrator(s) shall deem to be just. Without limitation upon the foregoing paragraph, in the event of a claim by a third party against Builder and/or Owner, the Owner and/or Tradecontractor arising out of or related to construction, desigl or engineering of any portion of the Project, or personal injury or property damage for which the Tradecontractor may be liable and the third party claim is submitted to arbitration, then Tradecomractor hereby agTees to participate in said arbitration proceeding and to be bound by the findings 0f such proceeding. Should Tradecontractor refuse or neglect to participate in any arbitration proceeding, the arbitrator is empowered to decide the controversy in accordance with the evidence presented. In the event any such dispute involves any one or more of Builder and/or Owner‘s other tradecontractors, Builder and/or Owner and Tradecontractor herein shall take such steps as necessary to consolidate their respective claims with those of such other tradecontractor(s) (and the third party claimants) in a single arbitration proceeding so that the rights and liabilities of the third party claimants, Builder and/or Owner and Builder and/or Owner's tradecontractors may finally be resolved by a single proceeding. By executing this Section 30: Arbitration, and initialing herein, each party confirms its consent t0 and agreement with the provisions 0f this section. Tradecontrac r Builder w “f m, (mm Initials “é“ Date yd Z‘ZZZé Initials [fig Date “f fly?"/flw TRADECONTRACTOR NAME: BUILDER NANIE: jgéfim‘m W/ZQW; ”gwfv . BROOKFIELD NORCAL BUILDERS INCaw m “(flow (”KM ’49““1‘ r» ‘‘‘‘‘ .x' «g w» ; By: fig» yaw”,Nwmw Kvfl . Mal q ?v’C fin” ' 'Qfi"'{SigJ,a:tuf'é f Signatull'e z/( 2.2/1 ‘ , By: MW“ £4 E"; Z iW Bv: Mark Saracco Primflame Print Name x NE Title: aEM ‘ (9'7" Title: Vice President of Operations & Purchasing u Date: {?Z/Zé/lif Date: fififfiw‘ww- f / R License N03 é) 77§73 License No; 959107 By executing this Master Tradecontract Agreement and initialing herein, each party confirms its consent to and agreement with the provisions ofthis section. Tradecontrac Builder w “‘“‘ fl :3 h ”mm Initials fi‘f/ Date Wfi§ Initials Wf/g’ Date rfar‘X/i/ , .‘ 57 ( / l/ 4‘»-/ [fnyugh‘v- . Edition20a: ,gr‘ev. 11/22/11(doc#313222) wbfl: @ ms&1 a FIlsllaredlC ‘SWURMCTYVE COJWJWUNIHESLWIA TARO - Glen Lamfloflsife - 4Watm'0bWaStEr Contracf DOCSIEXHIBITA BOILERPLA TE_J.J].13.JOCX 16 Exhibit “B” Scope of Work Storm Drain GENERAL PROVISIONS: 1. All work shall be in accordance to the plans and specifications by: a. Civil Engineer: Ruggeri-Jensen-Azar & Associates b. Soils Engineer: Earth Systems Pacific C. Landscape Architect: Van Dom Abed Landscape Architects, Inc. d City of Gilroy e County of Santa Clara This agreement is the only Agreement between Contractor and Subcontractor with respect t0 the work described herein. No representations, prior agreements or specifications shall be valid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. Subcontractor agrees to complete the work in accordance with the grading plans, improvement plans, utility plans, landscape plans, specifications, and soils & geotechnical report as approved by all applicable governing agencies. If there is discrepancy between any of these documents, the most stringent requirement shall govern. All material shall meet or exceed the requirements of the applicable governing agencies. If improper or substandard material is used on the job site, whether accepted by Contractor or not, upon discovery, Subcontractor shail correct or remove all substandard work or material within five (5) working days at Subcontractor’s expense. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated aii reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposai quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER OR PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. All EXTRA WORK requires submittal of DAILY TIME CARDS to Land Development Manager, for approve} in writing, at the end of each day as the work is executed. Ail prices for extra work on daily time cards for iabor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) plus 10%. Any work done beyond the lines and grades, as shown on the plans, will be considered as unauthorized and shall not be paid for without prior written consent of Contractor. No Excegtions. Prices shall remain in effect throuqh completion 0f proiect. Contract includes move- ins as may be required. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such dean shall be an extension oftime to perform. Invoicing of any Contractor approved “extra”work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no later than 45 calendar days after work was performed“ Failure to invoice within the time limit will result in forfeiture of right to payment. Subcontractor shall provide to Contractor a complete list of all Suboontractors’ sources of materiai for the work to be performed for Contractor. If Subcontractor purchases material from any other supplier for use on the Contractor’s job, Contractor shall be notified, in writing, within 24 hours after purchase. Subcontractor agrees that Contractor may communicate with any material supplier Subcontracfi ~ Page1of6 Builder m "”“ m: L “m Initialsaif 4%: Date éf/éz/f Initials “:"Lr’fif Date «mag gg/jf v «x‘ é to verify that its bills to Subcontractor have been or are being paid, and may request that the supplier notify Contractor if any bills are not being paid. 10. Subcontractor shall proceed with ali phases of its work under the direction of the Contractor’s Land Development Manager. All work must be to the complete satisfaction of Contractor and be in accordance with the requirements of all applicable governing agencies having jurisdiction. 11. Prior to the beginning of work there will be a preconstruction meeting held at the job site at a time to be specified by Contractor’s Land Development Manager. Representatives of the civil engineer, soils engineer, and governing agencies will meet with the Subcontractor to review the proposed work and the schedule. 12. In order to expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. . 13. Subcontractor agrees to comply with all federal, state and local safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction of the project, including safety of all persons and property, and that this requirement shall apply continuously and not be limited to normal working hours, and the Subcontractor shall defend, indemnify, and hold harmless the Contractor from any and all liability, real or alleged, in connection with the performance of work on this project, excepting for liability arising from the sole negligence of Contractor. 14. Excavation of trenches shall be in conformance with the specifications and requirements of all applicable governing agencies. Subcontractor further acknowledges by its signature hereon that he has read “Safety Orders” deaiing with excavation and trenches and agrees to make its field personnel fully aware of its content and it will ensure that there is adequate supervision of the project so that all trenches and excavations are made safe in full compliance with these safety requirements. 15. It shall be the responsibility of Subcontractor to request and schedule all his job inspections and obtain all finai acceptance in letter form from all applicable governing agencies, soils and civil engineers so that Contractor may obtain release 0f bonds and make retention payments to Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. 16. It is the responsibility 0fthe Subcontractor to provide a competent English speaking foreman on site at all times. The Subcontractor’s foreman is required t0 walk all inspections with the city inspector or any other governmental agencies having jurisdiction. Contractor reserves the right to have subcontractor’s foreman or any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. 17. Subcontractor shall ensure that all its employees SHALL NOT use obscene ianguage, play music Eoudly or consume aicoholic beverages or drugs of ANY KIND on Contractors property. 18. Subcontractor and its employees shall observe all speed limits at or near Contractor’sjob site. PARTICULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 MPH. 19. Subcontractor shall pay for all construction water for its use only. It will be the responsibility of Subcontractor to arrange for water service including, but not limited to, hydrant meter, fees and water truck service. 20. At all times during construction and until completion of Its work, Subcontractor, when it or its subcontractors are operating equipment on the site, shali prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work in such a manner that will confine dust particles to the immediate surface of the work. Subcontractor shall be responsible for any damage done by dust from its Subcontragaf l/MJ» Page 2 of 6 Builder M ” (W; N ‘ I M,“ Initials ”ixfi/ b Date 4J/é7z’xff Initials “f“f Date .3 "1:7" N é:;;/// xix / f activities in performing work under its contract. The prices for the various items of work shali cover dust control satisfactory to the applicable governing agencies and Contractor’s requirements If this requirement is not met, Contractor shall have the right to maintain dust control and backcharge the Subcontractor. 21. Subcontractor is solely responsible for its material and equipment lefi on the job site and shall provide its own security. 22. Subcontractor shall be responsible for the damage or breakage of its work or of other subcontractors’ work, or Contractor’s work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost of repairing or replacing such broken or damaged work. Subcontractor shail take adequate steps to protect its work from breakage or damage. If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. 23. Two (2) sets of “as built” drawings shall be included in this contract. This record shall be updated daily by the subcontractor and is t0 be available at the job site for review by Contractor’s field representatives. At the end of the job, one complete set of these records shall be turned over to the Contractor prior t0 release of any retention. 24. If the Subcontractor in the course of the work finds any discrepancy between the plans and physical conditions in the field, 0f any errors or omission in the plans in the layout of the survey stakes, and or in instruction given he shall immediately inform the Contractor’s Engineer. The Contractor and Contractor’s Engineer is not responsible for errant construction resulting from the construction process proceeding blindiy from stakes and or plans without cross-referencing between the two. The Subcontractor shall conduct routine checks prior to and during construction and shall have plans available at thejob site at all times. Any time the Subcontractor doubts the reasonableness or correctness of an element in the plans or field control staking, he shall contact the Contractor’s Engineer for clarification or confirmation. The Contractor’s Engineer wiIl endeavor to respond to any such inquiry made in good faith on a highest priority basis, and will do so free of charge to either the Contractor or the Subcontractor even ifthere is no error or omission. Any work done after such a discovery, until the problem has been remedied or dispelled, shall be done at the Subcontractor’s risk. 25. Subcontractor shall take particular care while working near adjacent properties Extreme care shali be taken when working around existing faciiities. Subcontractor shall be responsible for repairing 0r replacing existing improvements damaged by him or his Subcontractor or material suppiiers. Subcontractor and his Subcontractors will be responsible when hauling any earth, sand, gravei, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal of such debris deposited upon said public or private property shall be the Subcontractofs responsibility. 26. The Subcontractor shall take every precaution not t0 damage trees shown on the plans to remain. The Subcontractor will be held responsible for any monetary or other damages suffered by the Contractor. 27. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor’s Authorized Representative will provide Subcontractor with a construction schedule The construction schedule shall set forth the Start Date as well as the date for Completion and any intermediate milestones. Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees to immediately proceed in accordance with the amended construction scheduie. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start ofthe Work by Subcontractor. Upon receipt of such notice, Subcontractor shall begin the Work within 24 hours and shall execute the Work in a prompt and diligent manner and shall complete the work in accordance with the time designated in the Construction Schedule. Subcontractor acknowledges that time is of the essence of this contract. Contractor may establish specific requirements or schedules for the pace and rate of performance of the Work. Subcontractor acknowledges that Contractor is reiying on Suboontractor’s ability to perform the Work at the pace or rate estabiished by Contractor. Subcontractor agrees that it shall not proceed with any part of the Work ahead of Subcontractgyjé’wy” V / Page 3 of 6 Builder w f iv MW, Initials v‘rfi"'fioatefi§/é§/W initialsfflu Datefi “5’32”” / fu- . time designated by Contractor without written authorization. In order to expedite the completion of the Project or the Work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractor’s Authorized Representative. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension of time to perform. 28. If Subcontractor is behind in the Work or any portion to the Work is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right t0 direct Subcontractor, on forty-eight (48) hours notice, to furnish additional labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. If such additional labor is not available, Contractor has the right t0 require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) to such an extent will be sufficient to complete the Work or any portion of the Work in accordance with the construction schedule. 29. Subcontractor shall adhere to all requirements of the General Construction Activity Storm Water Permit and be responsible for its enforcement by their employees and anyone working under their control. Subcontractor shail be responsible to practice best management practices per the Regional Water Control Board and per project erosion control plan. 30. In the event any portion of the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost of protection and/or repair of Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shail be practiced per the governing agencies and the Regional Water Quality Control Board, Subcontractor shall be further responsible for damage to adjacent properties or improvements as a result of his not protecting such areas from storm water flowing out of his work area. 31. Subcontractor must supply and maintain all traffic control devices required for all public convenience and public safety as specified by the State of California “Manual of Traffic Controls” and the governing agency. Subcontractor shall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain aH safety devices including shoring and shall be responsible for conformance to all Iocai, state, and federal safety laws and regulations. Trenches will not be left open overnight in City Streets. 32. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance will be made to cover any costs in excess ofthe LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or letter initiated by the project manager prior to the start of extra work. All Extra Work will require submittal of Daily Time Cards to the project manager for approval at the end of each day as the work is executed. Al] prices for extra work on daily time cards for labor and equipment shall be from the subcontractor’s standard rental rate sheet discounted 5%. Material prices for extra work shall be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor no Eater than 45 days after the work was performed. Failure to invoice within the time limit will resuit in forfeiture of right to payment. 33. The unit prices for each item of work are to be used t0 determine the value 0f the work completed for progress payments and for determining possible changes in the contract amount resulting from changes in drawings, specifications, or scope of work. Subcontragiafi‘gfiy v /‘ /W Page 4 of 6 Builder Mg” w ngfw/ W“ Initials :M‘fiw Date 1;! Zg/z/fi Initials EMT”??? Date fix F} /’ p4?” / '1' 34. 35. 36. 37. 38. 39. Subcontractor shall be responsible t0 contact underground services aier‘t (U.S.A.) prior to any trenching operation. The project superintendent shall be given a copy ofthe control number issued by U.S.A. Subcontractor shall verify the iocafions of all existing underground utilities. Locations shown on the plans are approximate and shown for general information only. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer 0r reproductive toxicity, and a written statement must be on file with Contractor prior to any payments being made under this Subcontract Agreement. It shall be the subcontractor’s responsibility to keep all adjacent streets clean of mud/debris etc. Should Contractor find it necessary to have third party clean streets, Subcontractor shall bare ail costs. Subcontractor is solely responsible for his material and equipment left on the jobsite and shall provide his own security. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. This shall include cost of all reohecking and testing for certification that did not reach designed tolerance at first inspection. Shouid any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC INCLUSIONS INCLUDING BUT NOT LIMITED TO: Storm Drain 1. Subco Initiais Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set 0f finish C/G stakes for rock and concrete, and one set of complete underground stakes. The cost of any restaking or additional grade stakes ordered by Subcontractor will be charged to Subcontractor by Brookfield Homes. The underground Subcontractor shall include the costs of all imported backfill material that may be required by the Public Agencies having jurisdiction according t0 their standard specifications. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. No claim for extra payment will be allowed for difficulty in trenching because of water. Subcontractor is responsible for the design and shoring of trenches in accordance with all applicable occupational safety laws. Cost for this shall be included in unit prices for various Items of work. No additional compensation shall be made. Subcontractor is responsible to review the plans and site of work to determine the extent of pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items of work and no additional compensation shall be allowed therefore. The underground Subcontractor shail commence construction from the low end of all gravity Fines. Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shall be responsible t0 remedy the situation at his own cost and no additional compensation shali be allowed therefore. All underground spoils not within the area being graded for the Tract street improvements shall be the responsibility of subcontractor. Subcontractor is to knock down his trench spoil in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. All water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE n /* trac , ’ w” Page 50f6 Builder N v“ Em“ . MW Date @/%5 Initials w:?‘fi Date J ”f?f/{fi K, %A‘n fl ¢ r SYSTEM, UNLESS IT IS BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. 10. Lots in this development have been finish graded to Civil and Soils Engineering certification. Subcontractors using these lots for storage of materials will be responsible for the cost of all cleanup and restoration to a finish lot configuration. If it is found the lots are out of tolerance and recertification is required, those costs win be charged to Subcontractor by Brookfield Homes. 11. No asphalt rock, concrete, or rubble is to be left on the site or buried. 12. In the event any portion 0f the work should become Inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor wili pump the water out and resume work immediately. ‘13. Subcontractor agrees t0 install his portion of work to within a tolerance of +/-.10 of one foot (1’). Brookfield Homes will have its Engineers check any or all Subcontractor’s work and/or instailation and if it is found that Subcontractor’s work is not to a tolerance of +/-.1O of one foot (1’), subcontractor will immediately return to the jobsite and correct, replace and/or re-execute faulty or defective work. Subcontractor further agrees that after Brookfield Homes engineer’s first check of his work and/or installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractor’s and/or installation will be paid for by the Subcontractor until the work and/or installation are to the satisfaction of Brookfield Homes, it’s Engineers and all governing agencies. 14. All excess material used in installing underground system will be removed from the jobsite at the times of completions of work. 15. Excavations shall be adequately shored, braced and sheeted so that the earth will not slide or settle and so that all existing improvements of any kind will be fully protected from damage. Any damage resulting from a lack of adequate shoring, bracing and sheeting shall be the responsibiiity of the Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth, the subcontractor shall provide adequate sheeting. Sharing and bracing or equivalent method. 16. The underground Subcontractor shall be responsible for the installation of storm drain facilities. He shali also be responsible for lowering new and previously existing manholes, etc. to below sub grade levei for completion of finish grading, rocking and paving and raising same to finish grade, including all patch paving necessary for acceptance. 17. All manhole cones at the time of installation shall be topped off by a good cleated (four each cleated minimum) temporary 5/8” minimum steel plate and covered over with dirt to a minimum of 8” below finished subgrade or to a maximum allowed by City and/or County, Sanitary or Storm District. Finished rings and covers are to be instailed prior to finishing paving. Manhole Castings will be raised to grade. 18. Raise and patch paving around manholes is included. Subcontractor shall, comply with Cal Trans specifications of 1/8” in 12’ of toierance to the existing roadway surface Cal Trans manual. Section 39.6. 19. All area drains are included. Subcontrac M ‘ PaQeSOfB BUi'der M" “m M m: w wm~ Initials «VJ: Date [Q/Qf/ZEW Initialsfi’ffi Date J" "a‘f xii £7fo f. / Exhibit “B” Scope of Work Sanitary Sewer GENERAL PROVISIONS: All work shall be in accordance to the plans and specifications by: a. Civil Engineer: Ruggeri-Jensen-Azar & Associates b. Soiis Engineer: Earth Systems Pacific o. Landscape Architect: Van Dorn Abed Landscape Architects, Inc. d City of Gilroy e County of Santa Clara This agreement is the only Agreement between Contractor and Subcontractor with respect to the work described herein. No representations, prior agreements or specifications shall be vaiid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. Subcontractor agrees to complete the work in accordance with the grading plans, improvement plans, utility plans, landscape plans, specifications, and soils & geotechnical report as approved by all applicable governing agencies. Ifthere is discrepancy between any of these documents, the most stringent requirement shail govern. . All materiai shall meet or exceed the requirements of the applicabie governing agencies. If improper or substandard material is used on the job site, whether accepted by Contractor or not, upon discovery, Subcontractor shall correct or remove all substandard work or material within five (5) working days at Subcontractor’s expense. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has Checked the bid proposal quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER OR PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. All EXTRA WORK requires submifial of DAILY TIME CARDS to Land Development Manager, for approval in writing, at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) pius 10%. . Any work done beyond the lines and grades, as shown 0n the plans, will be considered as unauthorized and shall not be paid for without grior written consent of Contractor. No ExcegtionsA Prices shall remain in effect throuqh completion of proiect. Contract includes move- ins as may be required. Subcontractor shall not be entitled t0 recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension oftime to perform. Invoicing of any Contractor approved “extra”work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no [aterthan 45 calendar days after work was performed. Failure to invoice within the time limit will result in forfeiture of right t0 payment. Subcontractor shall provide to Contractor a complete list of all Subcontractor’s sources of material for the work to be performed for Contractor. If Subcontractor purchases material from any other supplier for use 0n the Contractor’s job, Contractor shall be notified, in writing, within 24 hours after purchase. Subcontractor agrees that Contractor may communicate with any material supplier to verify that its Suboontracto Page 1 of 6 Builder Miflrw H H h WM Initials /é;’g> Dateffig/j/{éw initials: ’ W; Date “ffxfiwfi‘rz bills t0 Subcontractor have been 0r are being paid, and may request that the supptier notify Contractor if any bills are not being paid. 10. Subcontractor shal! proceed with all phases of its work under the direction of the Contractor’s Land Development Manager. All work must be to the complete satisfaction of Contractor and be in accordance with the requirements of all applicable governing agencies having jurisdiction. 11. Prior to the beginning of work there will be a preconstruotion meeting held at the job site at a time to be specified by Contractor’s Land Development Manager. Representatives of the civil engineer, soils engineer, and governing agencies will meet with the Subcontractor to review the proposed work and the schedule. 12. ln order to expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. 13. Subcontractor agrees t0 comply with ail federal, state and local safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction of the project, including safety of all persons and property, and that this requirement shall apply continuously and not be limited to normal working hours, and the Subcontractor shall defend, indemnify, and hold harmless the Contractor from any and all liability, real or alleged, in connection with the performance of work on this project, excepting for liability arising from the sole negligence of Contractor. 14. Excavation of trenches shall be in conformance with the specifications and requirements of all applicable governing agencies. Subcontractor further acknowledges by its signature hereon that he has read “Safety Orders” dealing with excavation and trenches and agrees to make its field personnei fully aware of its content and it will ensure that there is adequate supervision of the project so that all trenches and excavations are made safe in full compliance with these safety requirements 15. It shall be the responsibility of Subcontractor to request and schedule all his job inspections and obtain all final acceptance in letter form from all applicable governing agencies, soils and civil engineers so that Contractor may obtain reiease of bonds and make retention payments to Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost 16. It is the responsibiiity ofthe Subcontractor to provide a competent English speaking foreman on site at all times. The Subcontractor’s foreman is required to walk all inspections with the city inspector or any other governmental agencies having jurisdiction. Contractor reserves the right to have subcontractor’s foreman 0r any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. 17. Subcontractor shall ensure that all its empioyees SHALL NOT use obscene language, play music loudly or consume alcoholic beverages or drugs of ANY KIND on Contractors property. 18. Subcontractor and its employees shall observe all speed limits at or near Contractor’s job site. PARTICULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 MPH. 19. Subcontractor shall pay for all construction water for its use only. 1t will be the responsibility of Subcontractor to arrange for water service including, but not limited to, hydrant meter, fees and water truck service. 20. At all times during construction and until completion of its work, Subcontractor, when it or its subcontractors are operating equipment on the site, shall prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work In such a manner that will confine dust particles to the immediate surface of the work. Subcontractor shail be responsible for any damage done by dust from its Subcontrav ' v Page20f6 Builder ,3 ”’ M («WW initialj/fi Date fxéj/éf! Initials f/fi Datefvg'fiw 21. 22. 23. 24. 25. 26. 27. Subcontra r Initials r” Date / ”f activities in performing work under its contract. The prices for the various items of work shall cover dust control satisfactory to the applicable governing agencies and Contractor’s requirements If this requirement is not met, Contractor shall have the right to maintain dust control and backcharge the Subcontractor. Subcontractor is solely responsible for its materiai and equipment lefi on the job site and shall provide its own security. Subcontractor shall be responsible for the damage or breakage of its work or of other subcontractors’ work, or Contractor’s work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost of repairing or replacing such broken or damaged work. Subcontractor shall take adequate steps to protect its work from breakage or damage If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. Two (2) sets of “as bunt” drawings shali be included in this contract. This record shall be updated daily by the subcontractor and is to be available at the job site for review by Contractor’s field representatives. At the end of the job, one complete set of these records shall be turned over to the Contractor prior to release of any retention. If the Subcontractor in the course of the work finds any discrepancy between the pians and physical conditions in the field, 0f any errors or omission in the plans in the layout of the survey stakes, and or in instruction given he shall immediately inform the Contractor’s Engineer. The Contractor and Contractor’s Engineer Is not responsible for errant construction resulting from the construction process proceeding blindly from stakes and or plans without cross-referencing between the two. The Subcontractor shall conduct routine checks prior to and during construction and shall have plans available at the job site at all times. Any time the Subcontractor doubts the reasonableness or correctness of an element in the plans or field control staking, he shall contact the Contractor’s Engineer for clarification or confirmation. The Contractor’s Engineer will endeavor to respond to any such inquiry made En good faith on a highest priority basis, and will do so free of charge to either the Contractor or the Subcontractor even if there is no error 0r omission. Any work done after such a discovery, until the problem has been remedied or dispelled, shall be done at the Subcontractor’s risk. Subcontractor shall take particular care while working near adjacent properties. Extreme care shall be taken when working around existing facilities. Subcontractor shall be responsible for repairing or repiacing existing improvements damaged by him or his Subcontractor or material suppliers. Subcontractor and his Subcontractors will be responsibie when hauling any earth, sand, gravel, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal 0f such debris deposited upon said public or private property shall be the Subcontractor’s responsibility. The Subcontractor shall take every precaution not to damage trees shown on the plans to remain. The Subcontractor will be held responsible for any monetary or other damages suffered by the Contractor. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor’s Authorized Representative will provide Subcontractor with a construction scheduie. The construction schedule shall set forth the Start Date as well as the date for Completion and any intermediate milestones. Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees to immediately proceed in accordance with the amended construction schedule. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start of the Work by Subcontractor. Upon receipt of such notice, Subcontractor shail begin the Work within 24 hours and shall execute the Work in a prompt and diligent manner and shall complete the work in accordance with the time designated In the Construction Schedule. Subcontractor acknowledges that time is of the essence of this contract. Contractor may establish specific requirements or schedules for the pace and rate of performance of the Work. Subcontractor acknowiedges that Contractor is relying on Subcontractor’s ability to perform the Work at the pace or rate established by Contractor. Subcontractor agrees that it shall not proceed with any part of the Work ahead of time designated by Contractor without written authorization. In order to expedite the completion 0f the Project or the Page 3 of 6 Buiider gé/(VI Initials ”jggw Date flaflj “"an 28. 29. 30. 31. 32. 33. 34_ Work, Contractor may direct Subcontractor t0 work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that Contractor will pay only the actual extra cost of overtime over its normal Eabor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractor’s Authorized Representative. Subcontractor shall not be entitled to recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension oftime to perform. If Subcontractor is behind in the Work or any portion to the Work Is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right to direct Subcontractor, on forty-eight (48) hours notice, to furnish additional labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. lf such additional labor is not available, Contractor has the right to require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) to such an extent will be sufficient to complete the Work or any portion of the Work in accordance with the construction schedule. Subcontractor shall adhere to all requirements of the General Construction Activity Storm Water Permit and be responsible for its enforcement by their employees and anyone working under their control. Subcontractor shall be responsible to practice best management practices per the Regional Water Control Board and per project erosion control plan. In the event any portion of the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost of protection and/or repair of Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shall be practiced per the governing agencies and the Regional Water Quality Control Board. Subcontractor shall be further responsible for damage to adjacent properties or improvements as a result of his not protecting such areas from storm water flowing out of his work area. Subcontractor must supply and maintain all traffic control devices required for all public convenience and pubiic safety as specified by the State of California “Manual 0f Traffic Controls” and the governing agency. Subcontractor shall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain all safety devices including shoring and shail be responsible for conformance t0 all local, state, and federal safety laws and regulations. Trenches will not be Eeft open overnight in City Streets. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance will be made to cover any costs in excess of the LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or letter initiated by the project manager prior to the start of extra work. Ail Extra Work will require submittal of Daily Time Cards t0 the project manager for approvai at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the subcontractor’s standard renta! rate sheet discounted 5%. Material prices for extra work shall be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor no later than 45 days after the work was performed. Failure to invoice within the time limit will result in forfeiture of right to payment. The unit prices for each item of work are to be used to determine the value of the work completed for progress payments and for determining possible changes in the contract amount resulting from changes in drawings, specifications, or scope of work. Subcontractor shall be responsible to contact underground services alert (U.S.A.) prior to any trenching operation. The project superintendent shall be given a copy of the control number issued by U.S.A. Subcontractor shall verify the locations of all Subcontrac r M Page 4of6 Builder w w w Wm Initials J/fié/ Date [éf/Zfi/fi?’ Initials :VT? Datetfifi“ «”3 .7 f1: v > » [V existing underground utilities. Locations shown on the plans are approximate and shown for general information only. 35. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer or reproductive toxicity, and a written statement must be on fiie with Contractor prior to any payments being made under this Subcontract Agreement. 36. It shall be the subcontractor’s responsibility to keep all adjacent streets clean of mud/debris etc. Should Contractor find it necessary to have third party clean streets, Subcontractor shall bare all costs. 37. Subcontractor is solely responsible for his material and equipment left on the jobsite and shall provide his own security. 38. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost. This shall include cost of all rechecking and testing for certification that did not reach designed tolerance at first inspection. 39. Should any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC INCLUSIONS INCLUDING BUT NOT LIMITED TO: Sanitam Sewer 1. Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set of finish C/G stakes for rock and concrete, and one set of complete underground stakes. The cost of any restaking or additional grade stakes ordered by Subcontractor wil! be charged to Subcontractor by Brookfield Homes. 2. The underground Subcontractor shall include the costs of all imported backfill material that may be required by the Public Agencies having jurisdiction according to their standard specifications. 3. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. No claim for extra payment will be allowed for difficulty in trenching because of water. 4. Subcontractor is responsible for the design and shoring 0f trenches In accordance with all applicable occupational safety laws. Cost for this shall be included in unit prices for various items of work. No additional compensation shall be made. 5. Subcontractor is responsible to review the plans and site of work to determine the extent of pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items of work and no additional compensation shaH be allowed therefore. 6. The underground Subcontractor shall commence construction from the low end of all gravity fines. Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shail be responsible to remedy the situation at his own cost and no additional compensation shall be allowed therefore. 7. Al! underground spoils not within the area being graded for the Tract street improvements shall be the responsibility of subcontractor. 8. Subcontractor is to knock down his trench spoil in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. 9. All water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE SYSTEM, UNLESS 1T IS BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. Subcontract v ' ~ /" Page 50f6 Builderwflyu ’ R r ”WW Initials X” Wwfiéfe ¢fi/é’f Initials {Mg Date flg/VfMr I ’IO. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. Lots in this development have been finish graded t0 Civil and Soils Engineering certification. Subcontractors using these lots for storage of materials wilI be responsible for the cost of all cleanup and restoration t0 a finish lot configuration. If it is found the lots are out of tolerance and recertification is required, those costs will be charged to Subcontractor by Brookfield Homes. No asphalt rock, concrete, or rubble is to be left on the site or buried. In the event any portion ofthe work should become inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor wili pump the water out and resume work immediately. Subcontractor agrees to install his portion of work to within a toierance of +/-.1O of one foot (1’). Brookfield Homes will have it’s Engineers check any 0r all Subcontractor’s work and/or installation and if it is found that Subcontractor’s work is not to a tolerance of +/-‘.1O of one foot (1’), subcontractor will immediately return to the jobsite and, correct, replace and/or re-execute faulty 0r defective work. Subcontractor further agrees that after Brookfield Homes engineer’s first Check of his work and/or installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractor’s and/or installation will be paid for by the Subcontractor until the work and/or installation are to the satisfaction of Brookfield Homes, it’s Engineers and all governing agencies. AII excess material used in installing underground system will be removed from the jobsite at the times of completions of work. Excavations shall be adequately shored, braced and sheeted so that the earth will not slide or settle and so that all existing improvements of any kind will be fully protected from damage. Any damage resulting from a lack of adequate shoring, bracing and sheeting shall be the responsibility of the Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth, the subcontractor shall provide adequate sheeting. Sharing and bracing or equivalent method. The underground Subcontractor shall be responsible for the installation of sanitary facilities. He shall also be responsible for lowering new and previously existing manholes, valve boxes, cieanouts, etc. to below sub grade level for completion of finish grading, rocking and paving and raising same to finish grade, including all patch paving necessary for acceptance. The underground Subcontractor shall also provide a permanent method of marking sewer laterals for use by the concrete Subcontractor in marking curbs (“8” on face of curb where lateral passes under the curb). The sewer lateral shall have a 2” x 4" driven into stable ground at the end of sewer Iateral, a minimum of two (2) feet above the pipe to serve as a pre-Iocation marker at the time the onsite plumber” backhoe digs to expose that sewer lateral end. All manhole cones at the time 0f instaliation shall be topped off by a good cleated (four each cleated minimum) temporary 5/8” minimum steel plate and covered over with dirt to a minimum of 8” below finished sub grade or to a maximum allowed by City and/or County, Sanitary of Storm District. Finished rings and covers are to be installed prior to finished paving. Manhole castings will be raised to grade. All sanitary sewers will be balled, air tested, flushed and cleaned after all manholes have been raised to finish grade. If required, televising of the sanitary main is included. Patch paving around‘manholes and street cleanouts are included. Subcontractor shall comply with Cal Trans specifications of 1/8” in 12’ of tolerance to the existing roadway surface. Cal Trans manual, section 39.6 Subcontrac M Page 6 of6 Builder “wt u; w mm. Initiais x/égz Date %gfi/iéflfl Initials wxg Date f 4:? NJ rp’fl ’/ / fig /\ Exhibit “B” Scope of Work Water GENERAL PROVISIONS: a. All work shall be in accordance to the plans and specifications by: b. Civil Engineer: Ruggeri-Jensen-Azar & Associates c. Soils Engineer: Earth Systems Pacific d. Landscape Architect: Van Dom Abed Landscape Architects, Inc. e. City of Gilroy f. County of Santa Clara 2. This agreement is the only Agreement between Contractor and Subcontractor with respect to the work described herein. No representations, prior agreements or specifications shali be valid or binding on either party, unless set forth in this agreement or in writing after the execution hereof, agreed by both Contractor and Subcontractor. 3. Subcontractor agrees to complete the work in accordance with the grading pians, improvement pians, utility plans, landscape plans, specifications, and soils & geotechnical report as approved by all appiicable governing agencies. Ifthere is discrepancy between any of these documents, the most stringent requirement shall govern. 4. Al! material shall meet or exceed the requirements of the applicable governing agencies. If improper or substandard material is used on the job site, whether accepted by Contractor or not, upon discovery, Subcontractor shali correct or remove all substandard work or material within five (5) working days at Subcontractor’s expense. 5. Subcontractor acknowledges that he has thoroughly familiarized himself with the plans, specifications, job site conditions and has anticipated aII reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. NO EXTRA ALLOWANCE WILL BE MADE TO COVER ANY COSTS IN EXCESS OF THE LUMP SUM PRICE SPECIFIED UNLESS AUTHORIZED IN WRITING BY MEANS OF A CHANGE ORDER OR PURCHASE ORDER INITIATED BY THE LAND DEVELOPMENT MANAGER PRIOR TO THE START OF EXTRA WORK. All EXTRA WORK requires submittal of DAILY TIME CARDS to Land Development Manager, for approval in writing, at the end of each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the Subcontractor’s standard rate sheet discounted 5%. Material prices for extra work shall be cost (with receipts from suppliers as documentation) plus 10%. 6. Any work done beyond the lines and grades, as shown 0n the plans, will be considered as unauthorized and shall not be paid for without grior written consent of Contractor. No Exceptions. 7. Prices shall remain in effect throuqh completion of proiect. Contract includes move- ins as may be required. Subcontractor shaH not be entitled to recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such delay shall be an extension oftime to perform. 8. invoicing of any Contractor approved “extra”work (performed to terms outlined in paragraph above), must be invoiced and received by Contractor no iater than 45 calendar days after work was performed. Failure to invoice within the time limit will result in forfeiture 0f right to payment. 9. Subcontractor shall provide to Contractor a complete list of all Subcontractors’ sources of material for the work to be performed for Contracton If Subcontractor purchases material from any other supplier for use 0n the Contractor’s job, Contractor shail be notified, in writing, within 24 hours after purchase. Subcontractor agrees that Contractor may communicate with any material supplier to verify that its Subco t Page 1 of 6 Buiider Wm: W ”w. (“I V .mmw lnitia3&9: Date@xk Initials M Date fr”: xi»? f Z” 10. 11. 12. 13. 14. 15. 16. 17. ’18. 19. 20. bills to Subcontractor have been or are being paid, and may request that the supplier notify Contractor if any bills are not being paid. Subcontractor shall proceed with all phases of its work under the direction of the Contractor’s Land Development Manager. All work must be to the complete satisfaction of Contractor and be in accordance with the requirements of all applicable governing agencies having jurisdiction. Prior to the beginning of work there will be a preconstruction meeting held at the job site at a time t0 be specified by Contractofis Land Deveiopment Manager. Representatives of the civil engineer, soils engineer, and governing agencies will meet with the Subcontractor to review the proposed work and the schedule. In order to expedite the completion of the project or the work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that the Contractor will pay only the actual extra cost of overtime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Subcontractor agrees to comply with all federal, state and [ocai safety requirements, and shall assume sole and complete responsibility for its work and forjob site conditions as they relate to its course of construction 0f the project, including safety of all persons and property, and that this requirement shall apply continuously and not be limited to normal working hours, and the Subcontractor shail defend, indemnify, and hold harmless the Contractor from any and all liability, real or alleged, in connection with the performance of work on this project, excepting for liability arising from the sole negligence of Contractor. Excavation of trenches shall be in conformance with the specifications and requirements of ail applicable governing agencies Subcontractor further acknowledges by its signature hereon that he has read “Safety Orders” dealing with excavation and trenches and agrees to make its field personnel fully aware of its content and it wiII ensure that there is adequate supervision of the project so that all trenches and excavations are made safe in full compliance with these safety requirements. It shall be the responsibility of Subcontractor to request and schedule all his job inspections and obtain all final acceptance in letter form from all applicable governing agencies, soils and civil engineers so that Contractor may obtain release of bonds and make retention payments t0 Subcontractor for his completed work. Removal and reconstruction of any defective work performed by Subcontractor or work that fails to be accepted shall be the responsibility of Subcontractor to correct at his own cost It is the responsibility of the Subcontractor to provide a competent English speaking foreman 0n site at all times. The Subcontractor’s foreman is required to walk all Inspections with the city inspector or any other governmental agencies having jurisdiction. Contractor reserves the right to have subcontractor’s foreman or any other employees removed from job site and replaced immediately if deemed incompetent or uncooperative. Subcontractor shall ensure that all its employees SHALL NOT use obscene language, play music [oudiy or consume aicoholic beverages or drugs of ANY KIND on Contractors property. Subcontractor and its employees shall observe all speed limits at or near Contractor’sjob site. PARTICULARLY in the construction areas, SUBCONTRACTOR’S VEHICLES SHALL NOT EXCEED 15 MPH. Subcontractor shall pay for all construction water for its use only. It will be the responsibility of Subcontractor to arrange for water service including, but not limited to, hydrant meter, fees and water truck service. At all times during construction and until completion 0f its work, Subcontractor, when it or its subcontractors are operating equipment on the site, shall prevent the formation of any airborne dust nuisance by watering and/or treating the site of the work in such a manner that will confine dust particles t0 the immediate surface ofthe work. Subcontractor shall be responsibie for any damage done by dust from its Subcontraq «1' Page 2 0f 6 Builder WM, r” mg WW Initials fifi/5 Date /2/ x/x’gk Initiaisfi/«K p, Date‘figxym’ Vii?” / I 21. 22. 23. 24. 25. 26. 27. activities in performing work under its contract. The prices for the various items of work shall cover dust control satisfactory to the applicable governing agencies and Contractor’s requirements. If this requirement is not met, Contractor shall have the right to maintain dust control and backcharge the Subcontractor. Subcontractor is solely responsibIe for its material and equipment left on the job site and shall provide its own security. Subcontractor shall be responsible for the damage or breakage of its work or of other subcontractors’ work, or Contractor's work, by Subcontractor, during the course of construction and the Subcontractor shall, on demand, promptly repair and/or replace or pay the cost of repairing or replacing such broken or damaged work. Subcontractor shall take adequate steps to protect its work from breakage or damage. If Subcontractor damages work by others, Subcontractor shall notify Contractor immediately. Two (2) sets of “as built" drawings shall be inciuded in this contract. This record shall be updated daily by the subcontractor and is to be available at the job site for review by Contractor’s field representatives. At the end of the job, one complete set of these records shall be turned over to the Contractor prior to release of any retention. If the Subcontractor in the course of the work finds any discrepancy between the plans and physical conditions in the field, of any errors or omission in the plans in the layout ofthe survey stakes, and or in Instruction given he shall immediately inform the Contractor’s Engineer. The Contractor and Contractor’s Engineer is not responsible for errant construction resuiting from the construction process proceeding blindly from stakes and or plans without cross-referencing between the two. The Subcontractor shall conduct routine checks prior to and during construction and shall have plans available at the job site at all times. Any time the Subcontractor doubts the reasonableness or correctness of an element in the plans or field control staking, he shall contact the Contractor’s Engineer for ciarification or confirmation. The Contractor’s Engineer wili endeavor to respond to any such inquiry made in good faith on a highest priority basis, and will do so free of charge to either the Contractor or the Subcontractor even if there is no error or omission. Any work done after such a discovery, until the problem has been remedied or dispelled, shall be done at the Subcontractor’s risk. Subcontractor shall take particular care while working near adjacent propertiea Extreme care shall be taken when working around existing facilities. Subcontractor shall be responsible for repairing or replacing existing improvements damaged by him or his Subcontractor or material suppliers. Subcontractor and his Subcontractors will be responsible when hauiing any earth, sand, gravel, stone, debris, paper or any substance over any public street, alley or public place during his work under this contract. The removal of such debris deposited upon said public or private property shall be the Subcontractor’s responsibility. The Subcontractor shall take every precaution not to damage trees shown on the plans to remain. The Subcontractor wili be held responsible for any monetary or other damages suffered by the Contractor. Subcontractor acknowledges and agrees the Contractor has complete control over the timing and sequence of this project. Contractor‘s Authorized Representative will provide Subcontractor with a construction schedule. The construction schedule shall set forth the Start Date as well as the date for Completion and any intermediate miiestones. Contractor reserves the right to provide an updated or amended Construction Schedule at any time and the Subcontractor agrees t0 immediately proceed in accordance with the amended construction schedule. Contractor’s Authorized Representative will provide written or verbal notice to Subcontractor prior to the required start of the Work by Subcontractor. Upon receipt of such notice, Subcontractor shall begin the Work within 24 hours and shall execute the Work in a prompt and diligent manner and shall complete the work in accordance with the time designated in the Construction Schedule. Subcontractor acknowledges that time is of the essence of this contract. Contractor may establish specific requirements or schedules for the pace and rate of performance of the Work. Subcontractor acknowledges that Contractor is relying 0n Subcontractor’s ability to perform the Work at the pace or rate established by Contractor. Subcontractor agrees that it shail not proceed with any part of the Work ahead of time designated by Contractor without written authorization. In order to expedite the completion of the Project or the x f, Subcontrag f Page3of6 Builder ”ngg” ft. V W Initials ”W Date [@j’l/fijjf Initiais ”?MM’ Date .x’ ?’??X/C’K ‘2‘ {f f 28. 29. 30. 31. 32. 33. 34. Subcontr or / I Page 4 of 6 Builderwflm ‘“ 73m ‘W M Initials 24% Date we /€ Initials 4x“? Date Lu; 5737/" 2' b/ «1/ 7 Work, Contractor may direct Subcontractor to work overtime. Subcontractor agrees that it will work overtime as directed by Contractor and that Contractor will pay only the actual extra cost of ovefiime over its normal labor rates and Subcontractor agrees it will not mark-up such costs for overhead or profit. Time slips covering overtime must be checked and approved daily by Contractor’s Authorized Representative. Subcontractor shall not be entitled t0 recover from Contractor any additional compensation or damages on account of any delay or disruption to work flow, whether caused in whole or in part by Contractor or others. Subcontractor’s sole remedy for such deiay shall be an extension of time to perform. If Subcontractor is behind in the Work or any portion to the Work is not commenced, performed, finished and delivered at the time established by Contractor, Contractor shall have the right to direct Subcontractor, 0n forty-eight (48) hours notice, to furnish additional labor and expedite deliveries of materials and equipment at Subcontractor’s cost and expense. If such additional labor is not available, Contractor has the right to require Subcontractor, at Subcontractor’s cost, to work overtime (and or weekends and holidays) to such an extent will be sufficient to complete the Work or any portion of the Work in accordance with the construction schedule. Subcontractor shall adhere to all requirements of the General Construction Activity Storm Water Permit and be responsibie for its enforcement by their employees and anyone working under their control. Subcontractor shall be responsible to practice best management practices per the Regional Water Control Board and per project erosion control pian. In the event any portion of the work should be inundated with rainwater or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. The cost of protection and/or repair of Subcontractor’s work as affected by storm waters during inclement weather shall be Subcontractor’s responsibility until the work has been accepted by the Contractor. Effective erosion control shall be practiced per the governing agencies and the Regional Water Quality Control Board. Subcontractor shall be further responsible for damage to adjacent properties or Improvements as a result of his not protecting such areas from storm water flowing out of his work area. Subcontractor must supply and maintain all traffic control devices required for all public convenience and public safety as specified by the State of California “Manual of Traffic Controls” and the governing agency. Subcontractor shall schedule his work to allow for emergency traffic flow during working hours and for normal traffic after working hours and on weekends. Subcontractor shall contact the governing agencies for such requirements. Subcontractor shall design, construct and maintain all safety devices including shoring and shall be responsible for conformance to all local, state, and federal safety laws and regulations. Trenches will not be left open overnight in City Streets. ‘ Subcontractor acknowledges that he has thoroughly familiarized himself with the pians, specifications, job site conditions and has anticipated all reasonable contingencies to perform a complete job. Subcontractor has checked the bid proposal quantities and agrees that they are correct. No extra allowance will be made to cover any costs in excess of the LUMP SUM PRICE specified unless specifically authorized in writing by means of a change order, purchase order, or letter initiated by the project manager prior to the start of extra work. Ali Extra Work will require submittal of Daily Time Cards to the project manager for approval at the end 0f each day as the work is executed. All prices for extra work on daily time cards for labor and equipment shall be from the subcontractofs standard rental rate sheet discounted 5%. Material prices for extra work shall be cost plus 10% (receipts from suppliers as documentation). Invoicing for Extra Work must be invoiced and received by the Contractor no tater than 45 days after the work was performed. Faiiure to invoice within the time limit will result in forfeiture of right to payment. The unit prices for each item of work are t0 be used to determine the value of the work completed for progress payments and for determining possible changes in the contract amount resuiting from changes in drawings, specifications, or scope of work. Subcontractor shall be responsible t0 contact underground services alert (USA) prior to any trenching operation. The project superintendent shall be given a copy of the control number Issued by U.S.A. Subcontractor shall verify the locations of all z" 35. 36. 37. 38. 39. existing underground utilities. Locations shown on the plans are approximate and shown for general information only. Subcontractor shall comply with Proposition 65 requirements relating to chemicals known to cause cancer 0r reproductive toxicity, and a written statement must be on file with Contractor prior to any payments being made under this Subcontract Agreement. It shall be the subcontractor’s responsibility to keep all adjacent streets clean of mud/debris etc. Should Contractor find it necessary to have third party clean streets, Subcontractor shall bare all costs. Subcontractor is solely responsible for his material and equipment left on the jobsite and shall provide his own security. Removal and reconstruction of any defective work performed by Subcontractor or work that fails t0 be accepted shall be the responsibility 0f Subcontractor to correct at his own cost. This shall inciude cost of all rechecking and testing for certification that did not reach designed tolerance at first inspection. Should any problems arise during operations, please contact the Land Development Manager at the main office. SPECIFIC INCLUSIONS INCLUDING BUT NOT LIMITED TO: Water 1. Subcontr l // Page50f6 Builder ; ‘ y; w Hm ' Dat97%9//5 Initials T???” Date-«g 4:? U Initials ' Brookfield Homes will furnish one set of rough grade stakes for earthmoving, one set of finish C/G stakes for rock and concrete, and one set 0f compiete underground stakes. The cost of any restaking or additional grade stakes ordered by Subcontractor wilt be charged to Subcontractor by Brookfield Homes. The underground Subcontractor shall include the costs of all imported backfill material that may be required by the Pubiic Agencies having jurisdiction according to their standard specifications. The underground Subcontractor shall include the cost of any additional precautions or added construction due to ground water. No claim for extra payment will be allowed for difficulty in trenching because of water. Subcontractor is responsible for the design and shoring oftrenches in accordance with all applicable occupational safety laws. Cost for this shall be included in unit prices for various items of work. No additional compensation shall be made. Subcontractor is responsibie to review the plans and site 0f work to determine the extent 0f pavement repair required for proposed underground lines through existing pavement. Cost of pavement repair shall be included in the unit prices of the various other items of work and no additional compensation shall be allowed therefore. The underground Subcontractor shall commence construction from the low end of all gravity lines. Should the underground Subcontractor fail to do so, and should such failure result in an underground system that will not function properly, the underground subcontractor shaEl be responsible to remedy the situation at his own cost and no additional compensation shall be allowed therefore. All underground spoils not within the area being graded for the Tract street improvements shall be the responsibility of subcontractor. Subcontractor is to knock down his trench spoi! in a neat and orderly manner so that the Engineer can place stakes in firm soil. Trench spoils must not impede normal construction auto traffic nor stop normal surface water flow to drain areas. AH water mains, services, hydrants and facilities are to be left on after they have been tested NO ONE HAS AUTHORITY TO SHUT OFF ANY PART OF THE SYSTEM, UNLESS IT ES BROKEN, WITHOUT THE APPROVAL OF BOTH THE WATER DISTRICT AND BROOKFIELD HOMES. k" 1/“ / ,.V,_\ 10. Lots in this development have been finish graded to Civil and Soils Engineering certification. Subcontractors using these lots for storage of materials will be responsible for the cost of all cleanup and restoration t0 a finish lot configuration. If it is found the lots are out of tolerance and recertification is required, those costs will be charged to Subcontractor by Brookfield Homes. 11. No asphalt rook, concrete, or rubbie is to be left on the site or buried. 12. In the event any portion of the work should become inundated with rain water or Subcontractor should cause the work to become inundated with water, Subcontractor will pump the water out and resume work immediately. 13. Subcontractor agrees to install his portion of work to within a tolerance of +/-.1O of one foot (1’). Brookfield Homes will have its Engineers check any or all Subcontractor’s work and/or instaltation and if it is found that Subcontractor’s work is not to a tolerance of +/-.1O of one foot (1 ’), subcontractor will immediately return to the jobsite and correct, replace and/or re-execute faulty or defective work. Subcontractor further agrees that after Brookfieid Homes engineer’s first check of his work and/or installation, paid for by Brookfield Homes, that all further Engineers checking of Subcontractofis and/or installation Wili be paid for by the Subcontractor until the work and/or Installation are to the satisfaction 0f Brookfield Homes, it’s Engineers and all governing agencies. 14. All excess material used in installing underground system will be removed from the jobsite at the times of completions of work. 15. Excavations shall be adequately shored, braced and sheeted so that the earth wili not slide or settle and so that all existing improvements of any kind will be fully protected from damage. Any damage resulting from a lack of adequate shoring, bracing and sheeting shall be the responsibility of the Subcontractor, and he shall affect necessary repairs or reconstruction at his own expense. Where the excavation for a pipe trench and/or structure is five feet or more in depth, the subcontractor shaEl provide adequate sheeting. Shoring and bracing or equivalent method. 16. The underground Subcontractor shall be responsible for the installation of water facilities. He shall also be responsible for iowering new and previously existing valve boxes, blowoffs, etc. to below sub grade level for completion of finish grading, rocking and paving and raising same to finish grade, including all patch paving necessary for acceptance. The underground Subcontractor shali also provide a permanent method of marking water services for use by the concrete Subcontractor in marking curbs (“W” on face of curb where lateral passes under the curb). 17. On the water main installation, Subcontractor will place a temporary riser pipe on top of each water valve a minimum of three feet (3’) above finish grade to protect the location of that water valve so that it can be operated easily for emergency purposes, as well as place a 2 x 4 wooden marker a minimum of two feet (2’) into the ground and three feet (3’) exposed above the ground at each water service riser (curb cock). IT WILL BE THE RESPONSIBILITY OF ALL SUBCONTRACTORS TO PROTECT AND MAINTAIN THESE WATER VALVE RISERS DURING THEIR PHASE OF CONSTRUCTION IF REQUIRED BY THE FINE GRADE, ROCK AND PAVE CONTRACTOR, VALVE CANS ARE TO BE LOWERED TO AVOID A CONFLICT WITH THE SUBGRADE AND ROCK. 18. Raising of all valve boxes and patch paving is included. Subcontractor shall comply with Cal Trans specifications of 1/8” in 12’ of tolerance to the existing roadway surface. Cal Trans manual, section 39.6. Subcontrw /' Page60f6 Builder 6% Fm; f“ Wm Initials/ Wm Date é? 3 //‘2”/ Initials “"57 W Date [.1 c539 N f" // 4/ / x