Document for BEACON RESIDENTIAL COMMUNITY ASSOCIATION VS. CATELLUS THIRD AND KING LLC et al

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Christian P, Lucia (SBN 203567)
Brent F. Basiligo (SBN 197159)

SELLAR HAZARD MANNING FICENEC & LUCIA

A Professional Law Corporation
1800 Sutter Street, Suite 460
Concord, CA 94520

Telephone: (925) 938-1430
Facsimile: (925) 256-7508

Email: clucia@sellarlaw.com; bbasilico@sellarlaw.com

Attorneys for:

Defendants and Cross-Defendants Cupertino Electric,
Inc.; Creative Masonry, Inc.; Carefree Toland Pools, Inc.;
J.W. McClenahan, Inc.; Van-Mulder Sheet Metal, Inc.;
N.Y, Heathorn, Inc.; Critchfield Mechanical, Inc.; Blue's

Roofing Company; West Coast Protective Coatings;

Allied Fire Protection; F. Rodgers Corporation; Western

Roofing Service

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

NOV 20 2012

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

BEACON RESIDENTIAL COMMUNITY
ASSOCIATION

Plaintiff,

Vv.

CATELLUS THIRD AND KING, LLC, et al.

Defendants,

AND ALL RELATED CROSS-ACTIONS

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Case No.: CGC08-478453

DECLARATION OF MICHAEL
CRITCHFIELD IN SUPPORT OF
DEFENDANT AND CROSS-
DEFENDANTS CUPERTINO
ELECTRIC, INC., CREATIVE
MASONRY, INC., CAREFREE
TOLAND POOLS, INC., J.W.
MCCLENAHAN, INC., VAN MULDER
SHEET METAL, INC, N.V.
HEATHORN, INC., CRITCHFIELD
MECHANICAL, INC., BLUE’S
ROOFING COMPANY, WEST COAST
PROTECTIVE COATINGS, ALLIED
FIRE PROTECTION, AND WESTERN
ROOFING SERVICE’S MOTION FOR
SUMMARY ADJUDICATION
AGAINST PLAINTIFF BEACON
RESIDENTIAL COMMUNITY
ASSOCIATION’S SEVENTH CAUSE
OF ACTION FOR THIRD PARTY
BENEFICIARY/BREACH OF
CONTRACTS AND SUBCONTRACTS
ALLEGED IN PLAINTIFF’S THIRD
AMENDED COMPLAINT

DECLARATION OF MICHAEL CRITCHFIELD IN SUPPORT OF SUBCONTRACTORS’
MOTION FOR SUMMARY ADJUDICATION

98941

Case No, CGC08-478453Documents Served and Filed Herewith:

1. Separate Statement of Undisputed
Material Facts

Notice of Motion and Motion

Request for Judicial Notice

Declaration of Brent F. Basilico
Memorandum of Points and Authorities
Declarations of Moving Parties

AWRYN

Date: January 18, 2013

Time: 9:30 a.m.

Dept.: 304

Judge: Honorable Richard A. Kramer

Complaint Filed: August 8, 2009
[California Code of Civil Procedure § 437c]

I, Michael Critchfield declare as follows:

1, If called as a witness, ] would competently testify to the facts set forth below which are
within my personal knowledge.

2. On March 30, 2001, I was President of Critchfield Mechanical, Inc. (“CRITCHFIELD”)
when Steve Poe executed the agreement titled “Webcor Builders Master Subcontract Agreement” with
Webcor Construction, Inc., dba Webcor Builders (collectively “WEBCOR”). A true and correct copy
of the agreement titled “Webcor Builders Master Subcontract Agreement” is attached hereto as Exhibit
“A”.

3. On March 28, 2002, I was President of CRITCHFIELD and executed the agreement
titled “Webcor Builders Work Authorization to Master Subcontract Agreement” with WEBCOR, A
true and correct copy of the agreement titled “Webcor Builders Work Authorization to Master
Subcontract Agreement” is attached hereto as Exhibit “B”.

4. I am familiar with the project commonly referred to as the Mission Bay, Block N1,
located between Third and Fourth Streets, and King Street in San Francisco, California, which is the
subject of the above captioned matter and identified in the document titled “Webcor Builders Work
Authorization to Master Subcontract Agreement” and attached hereto as Exhibit “B” (the

“PROJECT”).
-2-

DECLARATION OF MICHAEL CRITCHFIELD IN SUPPORT OF SUBCONTRACTORS’
MOTION FOR SUMMARY ADJUDICATION
98941 Case No, CGC08-478453nN

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5. {, along with others from CRITCHFIELD, were involved in the negotiations of the
agreements described above and attached hereto attached as Exhibits “A” and “B”, and I am familiar
with the terms of said agreements,

6. At the time CRITCHFIELD entered into the Webcor Builders Work Authorization to
Master Subcontract Agreement attached hereto as Exhibit “B” it was my understanding that the

residential portion of the PROJECT was intended to be apartments that would be rented to tenants.

7. Neither of the agreements described above and attached hereto attached as Exhibits “A”

and “B”, mention or reference the following: (a) Plaintiff Beacon Residential Community Association
or any predecessor association(s); (b) the Beacon Commercial Owners’ Association or any predecessor
association(s); (c) the 595 individual unit owners identified in Plaintiff's Third Amended Complaint;
(d) Mission Place Residential Community Association or any predecessor association; (¢) any
homeowner association; (f) any Covenents, Conditions and Restrictions (“CC&R’s); and/or (g) that
any type of organization or association similar to the foregoing associations and organizations would
be created, or were in existence.

8. At the time CRITCHFIELD entered into of the agreements described above and
attached hereto attached as Exhibits “A” and “B”, it was unaware that Third and King Investors, LLC
(“TKL”), or any of the Catellus Parties, which include Catellus Development Corp., Catellus Corp.,
Catellus Operating LP, Catellus Urban Development Corp., Catellus Commercial Development Corp.,
Catellus Third and King, LLC, and Prologis (collectively “CATELLUS PARTIES”), were planning to
record any CC&R’s and create a residential and/or commercial association,

9. CRITCHFIELD had no knowledge when it entered into the subcontracts described
above with WEBCOR that TKI or any of the CATELLUS PARTIES would sell the PROJECT to
MISSION PLACE, LLC, or any other entity.

10. At the time CRITCHFIELD entered into the subcontracts described above with
WEBCOR, CRITCHFIELD was unaware of any of the identities of the future purchasers of the units
in the PROJECT (the “MEMBERS”).

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DECLARATION OF MICHAEL CRITCHFIELD (N SUPPORT OF SUBCONTRACTORS”
MOTION FOR SUMMARY ADJUDICATION
98941 Case No, CGC08-47845311. Atthe time CRITCHFIELD entered into the subcontracts described above with
WEBCOR, CRITCHFIELD was unaware of the identities of the purchasers of the commercial spaces,
or that TKL, the CATELLUS PARTIES, or MISSION PLACE intended to sell any of the commercial
spaces.

12, CRITCHFIELD did not intend for the following entities, individuals, and associations
to be third party beneficiaries to the WEBCOR subcontracts attached hereto as Exhibits “A” and “B”:
(a) Plaintiff Beacon Residential Community Association or any predecessor association(s); (b) the
Beacon Commercial Owners’ Association or any predecessor association(s); (c) the 595 individual unit
owners identified in Plaintiffs Third Amended Complaint; (d) Mission Place Residential Community
Association or any predecessor association; (e) any homeowner association; and/or (g) any type of
organization or association similar to the foregoing associations and organizations that would be
created, or were in existence, CRITCHFIELD further did not intend for any of the CC&R’s of any of
the foregoing organizations and/or associations to reflect that the organization and/or association was
to be a third party beneficiary to the WEBCOR subcontracts attached hereto as Exhibits “A” and “B”.
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DECLARATION OF MICHAEL CRITCHFIELD IN SUPPORT OF SUBCONTRACTORS”
MOTION FOR SUMMARY ADJUDICATION
98941 Case No, CGC08-47845313. The attomey’s fee provision contained in § 24 of the “Webcor Builders Master
Subcontract Agreement” hereto as Exhibit “A” was only intended to apply to the parties to the
contract, The attorney's fee provision was never intended to apply to, or be incorporated into, the
following entities, individuals, and associations: (a) Plaintiff Beacon Residential Community
Association or: any predecessor association(s); (b) the Beacon Commercial Owners’ Association or any |

predecessor asfociation(s); (¢) the 595 individual unit owners identified in Plaintiff's Third Amended

Complaint; (d):Mission Place Residential Community Association or any predecessor association; (¢) . ||

any homeowner association; (f) any CC&R’s; and/or (g) or that any type of organization or association

jsimitar to the foregoing associations and organizations would be created, or were in existence.
| I declare under penalty of perjuty under the laws of the state of California that the foregoing is
} true and correct.

Executed this ae _.; diy-6f Novertiber 2012,
13 fj California.

be Michael Critchfield

-§-

ete sorreemenne
DECLARATION OF MICHAEL CRITCHPIELD TN SUPPORT OF SUBCONTRACTORS ,
. MOTION FOR SUMMARY ADJUDICATION

98941 Case No. CGC08-478453EXHIBIT AWEBCOR BUILDERS
MASTER SUBCONTRACT AGREEMENT

WRBCOR CONSTRUCTION INC.
dba WEBCOR BUILDERS

2755 Campus Drive, Suite 175 ,
San Mateo, CA 94403-2514
Telephone: (650) 349-2727
Facsimile: (650) 578-8158

Lic, 4: 700887B

THIS MASTER SUBCONTRACT AGREEMENT FOR CONSTRUCTION SERVICES
(MASTER AGREEMENT “ or“SUBCONTRACT”) made and entered into this 27" day of
December , 2000, by and between WEBCOR CONSTRUCTION INC., dba WEBCOR BUILDERS
hereinafter called the “Contractor” and Critchfield Mechanical, Inc, hercinafter called “Subcontractor.”

WITNESSETH:

In consideration of the mutual agreements hereinafter contained, Contractor aud Subcontractor
agree as follows:

1, GENERAL CONTRACTOR'S WORK: From time to tims contractor enters into Construction
contracts (“Prime Contract”) with Owners (“Owner”), for various construction projects,

2. SUBCONTRACTOR’S WORK: From time to time, Subcontractor provides work to and for

Contractor (“Work”) generally described as follows; HVAC Work ( See Work Authorization
for sposific Scope).

‘With respect to euch Wark, the Subcontractor agroas to furnish all labor, services, materials,
installations, cartage, hoisting, supplics, insurance, equipment, scaffolding, toole, and other
facilities of every kind and description required for the complete, prompt and efficient
performance of all the Work, .

3, MASTER AGREEMENT: The Contractor and Subcontraotor desire to enter into this Master
‘Agreement to expedite and faoilitats Contractor's ability to engage Subcontractor to perform
‘Work on projects whare Contractor desires such servicas, The Parties intend this Master
Agreement to dofine the rights and obligations of the Parties on any and all projects where
Contractor has engaged Subcontractor to perform Work after the date of this Master
Agrooment or where the Partios have otherwise agreed that this Master Agrosmont shall be
applicable, Contractor has the right to terrainate the Master Agreement upon written notice
to Subcontractor, provided, however, the Master Agreement shall continue to apply to any -
Work on a particular project on which a Work Authorization was proviously issued.

WEB170277pa

» e@

Webcor Master Subcontract Agreement
Page 2

4. WORK AUTHORIZATION: This Master Agreement docs nat create and agrocment that

Contractor will request, or that Subcontractor will perform, Work on any particular project
(hereinafter referred to as a “Particular Project”). This Master Agreement will become
applicable to a Specified Project, when Contractor hes issued Subcontmotor a Work

Authorization, A Work Authorization is a-statement requesting Subcontractor, to begin

performing Work on a Particular Project, Contractor's Project Managers are authorized to
issue the Wark Authorization. . .

5. SCOPR OF WORK: The Scope of Work on amy Particular Project will be set forth in the Worle
Autlivrizuliun,

6, SUBCONTRACT PRICE: Until other wise agreed, Subcantractor’s compensation for the
‘Work shall be aet forth in the Work Authorization. Payments shall be made in accordance with
Contractor's General Conditions to Master Agreement attached hereto.

7. GENERAL CONDITION’S: The General Conditlons to Master Agreement, ( Section 1
through 25) ore incorporated by this reference into this Master Agceoment, the same as if fully
set forth herein, All references in the General Conditions to the Prime Contract, Contract
Documents, Owner, Atchitect, Engineer, Work, Project and other such terms shall be deemed
to refer to the Prime Contract, Contract Documents, Owner, Atehitect, Engineer, Work, Project

- and other such terms on the Particular Project on which the Work relating to any specific iame
was performed,” .

8, INSURANCE; In addition to the requirements of Section 16 of the General Conditions to
Master Agreement, Subcontractor ahall, prior to the commencement of work on a Partionlar
Project, furnish Contractor with a Certificate of Insurance and all Additional Insured
Bndorsements required for the Particular Project,

IN WITNESS WHEREOF, the partios have excouted this Master Agresment the day and year
herein above written:

Contractors are required by law to ta licensed and regulated by the Contractar's State License Board which
hos jurisdiction to investigate complaints againet oontmotore if 4 complaint regarding a patent aot or
mission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or

- ornission pertaining to structural defects must be filed within 10 yoars of the date of the alleged violation.

Any questions conceming a contractor may be referred to the Registrar, Contractor's Stato License Board,
P.O. Box 26000, Sacramento, Califomia 95826.

WEB1702782 g
ered

Webcor Master Subcontract Agreement
Page 3

85 Campbell Avenu:

Addross
Menlo Park . CA 94025
City, State, Zip
By: Se
Namo
Title
Date ce ,
on
License No. Classification No.

‘WEBCOR. CONSTRUCTION INC.
dbs WEBCOR BUILDERS

2755 Campus Drive, Suile 175
San Mateo, CA 94403-2514

WEB170279SECTION 1, ENTIRE CONTRACT
‘The phraze "Contract Rooumanta® applicable to any Spacified Project Is dafined ta imean end Include the foltawing:
Work Authortzation and the following Exhiblta attached to the Work Authorization: ,

fat “Ne Scheduln af Plana and Aperificatians
‘Exhiblt "F* Invitation to Bld end Bid Criteria

Exhlalt °H* Construction Schedule

Exhibit ‘Schedule of Values

The remaining Exhibits attached hereto, inoluding the following:
Exhibit *B* Warrenty

‘Exhibit 4 Lion Relaages

Exhibit "0" ‘Sample Certificata of Insuranoa and Additional Instirad Enkiorsoment
Exhibit "E* Buboontractor Dally Aativity Report

Exhibit "@" Subeantrotor Payment Requisition

Exhibit a" ‘Other Exhibits

‘The Prime Contact, Gener! Gondltans, Amendment A (I applloable), Supplemental Condilons andor Special Conditions batween the
‘Owner and Contractor.

‘Subcontractor certifies that he Is fully familar wath afl of tho tarms af the Contract Dacuments, the focation af the Job site, and the
condifions under which the work fs (o be performed and that he enters Into this Agreament based wen his Investigation af all euch
mallera and doauments and Is nat relying an any opinions or representations of Contractor, This Agreement represants the enttro
egigemant, The Contract Doouments sre inoorporated in this Agracmont by referonte, end Subcantraotor and his suboontreotor will be
and eye bound by the Contact Doauments ingotar aa thay relate (n any way, cireotly or: Indirectly, to the work covered hy thie
Agreament, Subcontractor agrees to ba bound to Contractor In the seme mannar ‘and to the seme extent a3 Contractor Is bound to
Owner under the Contract Dooumants, to the extent af the work provided for In thls Agreement, and that where, in the Contract
Dacuments refaranca la made to Contactor, and the work or spacifieations theraln Ins ta Bubsontractora brade, oral, ar type of
‘work, tnen such Work oF spadification shall Be interprated to apply to SuBconvactor tnstend of Contractor, in the avant that Mave [8 a
confiict betwaen documents, the rere alingant of he documents shall apply. The prime contract batwean the: Owaar and Contractor Is
avallable for raviaw at the Contractor's main offica at 2755 Campus Drive, Sutte 176, San Malso, CA £4403-2514,

SECTION 2. ASOPE,

‘Tho work to ba performed by Subcontractor Is not naceszarily In one particular partion of the plans end epecifioations. Subcontrantor wali
parform all of tie work that falls within tha general ares of the Work Authortzation, ragardiess of the fact that the work to be performed
ivy bo dlaliouied Uveughout the plins und ypodifcatlony, and Contract Documents, as woll ua wit Incidental work feasnnadty
necessary to complete this tha acope of work set forth In tha Work Aulhorizevon, In the avant af any dispute Latwoen Contradtor end

Subcontactor, Subcantractor will not stop work Dut will prosecute the work dilgenlly to complation, the dispute to be subinitled for
resolution In accontance with Suction 17 af this Agreament.

SROTION3, CONTRACT PRIGE
‘The contract price Is get forth !n the Wark Authorization Issued for a Harllcuter Projack,
SECTION 4. PAYMENT SCHEDULE

4a Except a9 olhenvise provided in thle Subconteot and except that this Section shell In no event ba construed te violate ihe
pubic pollcy of tha Stale of Calfornle, It ts agroed that pragresa payment to Subcontracter shell only ba made for work
perfornad hy Subcontractor a2 reflected In Contractors Application for Payment Paymont Is dua when Subcontraotor
furnlshes services, actuelly pecfarmad, according to the terns of thls Sundontact, regerdiass of eny dafauite aftributabts to
Gwaer or Gonlracter, Payment fo payable ellhar unon Ovner approval of tha Payment Application and ‘subsequent Ovner
payment, or, Inthe evant of Ownor's non-payment, when Suboontradtor hes compllad with paragraph 4,1.2 below.

Approval of Cantractora Appilsatian for Payment and payment for the wark reflected therein by Owner shall ba a gandition
precadent which must occur bafare Contractor will be obligated to pay Subcontrantor. ‘Subsequent to Owner approval of
Contractor's Applicaltan for Payment, Contrector shall pay ‘Subcontractor upon recalpt of psyment from the Owner,
Subcontractor’s portton of spld payment allowad to Contractor less any percentage retained under the contract batyean tha
‘Conbactar and tha Quner, Upon foralpt of payment from Over, and Subconbactar compllence with Parsaraphs (4.2) and
44.8) halow, Contractor wil pay Subcontractor the sald contract aum on ar about the ‘0th day of the month follawing tho
fnonthe In which the work was performed, provided bowaver, Contactor may rataln as part security for Subcantractos’s:
fulfilment of this Contract, an amount eque! to {en parcent (10%) of the value of tha work complated by Suboontrastor 88
determinad by Gontaclor ent/or Quer for the puspose of subconiraat progase payment, Final payment shall only ko Made
to Qubeontraator from avma received by Contractor aa final payment fmm Owner, avbjact to the above provisions and alga
Paragraphs (4.2), (4.3) ond (4.4) betow, Within fourtean (14) calendar days after tho award of the ‘Subcantract but in eny evant

ModiRsd AGG Form . . ae Revision 2000

WEB170280ane

AAG

42

4a

44

45

47

na Jater than Subvonttactor’s fat payment request, Subcontractor shell furnish to Contmotor a biting braakdawn or schedule
of valuiss for Contraniors anipraval for ug” tn appraving Invatoss and paroantagaR af rampiated work, Suhenntrantors
‘achedule of values shel! include a lina Item for each portion of the Work,

Inthe event Owner falls, neplecta or rafusas to pay tie Contractor for any reasons whatsoever (ercanten account of dafeults

solaly eltrbutabla to the Contractor), theo prymant shall nat be payable to Susnontater wall tha avents hereinafter eet forth

‘gour. In the avent of non-payment by the owner fo the tor; the Contraator shall nolify the Subsontrabior In welling,

‘Upon receipt af auoh notice, tho Subcontractor shall record # Machantos’ Llan andfor serve @ Stop Notfoa pursuant to the

provision of th Clvil Coda, Exhaustion of tho Subcontractors Mechanics’ Lien andl Stop Nolita remedies ts a conditon

Precogent ‘10 the Contractors obligation ta pay the subcontractor, The Contractor shall be obligated to.day the ‘Subcontractor
‘tha Subcontractor [s unabls to recaver.dhe amount due Subcontractor purswent to ts Machanlo's Llen en Stop Natlea,

{nthe event awnar falls, neglosts or refuses to pay the Contractor fer eny reasons whatsoever | (except on account of defaulis
‘solely atirbutsble to the Subcontractor), Contractor agrees to pureua ita and Subcontractors rights to payment from Omer,

in the event the Subcontractor doss not cubmit to the Contractor such monthly estimates by ‘tha date provided In the
subsantract, then (unisss te Contract Gocuments pravids otherwise) tho Contractor may at hls oplion Include In his monthly
‘eatimate to the Owner for Wark perfarmad during the frgoading months such emount es hu wiey deam proper far th Work for
the Subodntractor for the pracading month and the Subcontractor agrees to accept such ‘approved portion thareof In eu of

_ ‘Monthly payment based upon the Subconbactars estimate, In the event Subcontractar submits such monthly estimate to
Gentractor witht

In the time deaorbad above, the Contactor may at his discretion modify Subcontractars eatimete In
acoontance with Contractor's own oatimete of the value af the Subcontiactor’s Work performed during the preced! month.

In
and the Swocontmalar agmas 10 accept Contractors esfimate theroof In Meu of monthty payments case on the
Subcontractor’ eatimate,

Pragroos poymants to the Subcontractor shell ba made only for the Work parformadt by the Bubcontractar as refiasted In tho
‘Subnonbestor monthly astmate, Approval of the Sudcontractor's monthly astimts, In whole or in part shall bs a condtian
precedent which must accu before the Conlractor will be obligated to pay the Guboontaciar, ‘Approvel and paymant of
‘Subcontraclor’s monthly estimate [s speotfically saread not to conaltute or traply acceptance by the Gontraator ar Owner of
‘any portion of the Subonntrector’s Wark, Subcontractor agracs ‘thet upon partis! or full payment he will dellvar to Conlractar
applicable Telaasee of feonanica lien rights far inet portion pald on te form auached ag ExnibIt“D". .

Subcontreator slyall prepara and prasont to Gonivestar, for Ite appravel, on or before the 20th day of each calondar month
(Current Month’), projected through the end of the month, 2 complale lavolea using Contractors format (Bxhfbli’s “C" anc "G*
Teferenced above'in Satan 1). Contactar Is il tequbul to neh any payment to Gubcontrecior untews Suuconiractor shel
previously have provided auch supporting documentation es may be required by Contractor, Owner, Archftant, or any
‘construction lender which free provided financing In connecton with the work pursuan 40 the Prime Contract Including, but not
Iimlled to, copton of requisitions fram Subcontrectora ‘and matarial suppllera, payroll affidavits, receipts and vouchers, ‘and
Conuliondl lan relaneed for the Currant Month and Uncondivonel Ken felensas for Ail work compicted priar to the Curent
‘Month executed by al) persona and companies who might have mechanics Hen, stop natica of labor and matertal band rights:
‘against the project and arfslng out of work performad under the Subcontract, valng Centractar’s forms along with evidence of

payment ‘88 applicable to ell unlons and union trust funds, Contractor nay prepare and Issue 4 folnt check for the amounts)
fel

Contractor may withhold monthly progress nto, In agoordence with applicable laws, In arder ta prolect Contractor and/or
‘Ownar from lose bacause of any avant of defauit under this Subcontract When the grounds for the default ara ramoved by

Bubeantractor ‘and the funds ere pale to Cantract by Quiner, payment shall bo made for the amounts withheld becauee of
mM.

Sublect to; Paragraphe 4.1.4, 4.1.2, 4.4.8, 4.1.4, 4.4.5, above, the removal of all geaunds for withholding, the delivery by
Subsontrastor to Contractor of (() ‘Subcontractors signed Guarantee, (I) ae-bulit plans, (IH) operation and maintenance
tenuals padqulred by the Gontract Documonts, and (iv) salstactory proof thet all datms, Including taxes, growing oul of tha
work hereunder {and any llana ralated thereto) have bear released including, ape: Contractor's receipt of fully executed
flan releases from Subcantractor end all of Its Sub-subcontrastors and material suppliers involved In ite Work, Via belance
‘owing to Suboontractor under the terms of {his ‘Subcontract shall ba due and payable thirty-five (35) daye after completion and
aceaptance-of the eniite Project and thn (10) days efter raoclpt of same from Oumar, Final payment may, at Ownera oF
Contractors option, ba made in the form of checks made Jointly payable to ‘Subcontmaator and any Sub-subcontractor,
meterialmen, laborer ar supplier entlled to payment out of the funds oF tha fins! paymant.

‘Any and all funds paysbie to Subcontractor heraunder ere hereby dedared to constiiute tust funds In the hands of
‘Subcontraator, lo be: aepled finat to the paymant of claims of ts eubcontrsctars, architects, englieors, survayors, laborers and
‘materlalman prising’ aut of the described work, to otalme for utlitas furnished and taxes fmpased, end fo te payment oF
pramlums on surely bonds and other bands fled end premiums on Insurance scoring during the construction of the
deserbad work, befare applicalion to any other purpasa.

Monthly Progress Invologa end all sppropdate documentation must be submited to the Jobsite office on ar bafora the 20th of
‘each month for processing a6 per Section 2 of he Subsaniraol,

in accardenca with the Prime Contract provielons, Subcantmctor must obtain advance -wiltlen approvel to receive payment for
malertals or equipment delivered to the jouslta but nat yat Incarparated Into ‘the work, Payments (or materlts stored on or off
the alto shel} bs conditions! Upon submission by Subcontractor of bls of sale or auch other procaduras aatiafaclary lo Owner
and Lender to establish Owners Tlie and to protect Ownor's Interast in the materials or equipment,

WEB170281SECTION 6, ‘TIME

8A

8.2

63

Time te of tha ensence of thle Agreement, Subcontrector shall provide Contractor with scheduling Information and a proposed
schedule for parformanns of his Work Ina for aoneptatte to Contractor, Subcontractor shak confarm to Contracta’s

progress sohadula (Exhibit "H") and all rasuonabla revisions or changes made tharalo by Contractor, Subcontractor shell-

frosecute hia work In B prompt end dilgant manner In ecoordanca with Contreotere progress sohedule withaut delaying or
faring Contraotor'e Work oF. the work of othor contractors or aubconkmotore. Subcontractor stall ‘eoordinate the work
rovered by this agreement wilh that of alf other conlmotors, eubganteatora, and of the Contractor, it a manner that wit
faciltate the wifldent coniplollon af tha entra work, In the event Subconvactor falls to mafntatn bis part of the Contraators
‘schedule, he shell, without sildlticnal compensation, sccalerals the work as Contranlor may direct nt) Subcontraator’s work
Is In novordance with auch achedule, Contractor shell have comalate control of the premises on witch the work Is to be
performed and shall have the right to decide the ima and onterin which variaus portions of tha work shell be Installad ond the
relative priarlly of the work of Subcontactor and other subcoriractors, and, In ganaral, all other matters, ining to the
timaly and orderfy conduct of the work of Subcontractor on the pramisea, Should Gubcontractor be doleyed prossaution
‘or complation of tie wark by the act, neglact or dafaull of Owner, Architect or Contrantar, then the me farala fixed for the
camplation of tha work shall be axtended tha riumber of daye tha Subcontmeter haa this been delayed, but no allowance or
‘extension ehell be mada unlegs a dalm therefore ls presenied In wnling ta Cantraator within 48 hours of the commencement
of euch ela, ‘and under no elumetences shal tha tina of completo be exlonded toa data whlch will pravent Contractor
from completing the entire project within the ima allowed Contractor for auch completfan. .

No claims for additional compensation or damages for delaya, whethar oaused In whola or In part by any condubt on the pert
‘of Contrantor, Including, but not limlled to, conduct ammovniing to a breach of this Agreement, or delays by other
qubconirastore or Owner, shall be recovareba fram Contractor, and the ehave-montioned extension of time: for compilation
aheil be tho eole remady of Subconteactor,  rovided, howavar, that in the event Contractor abtalng additonal compensation
from Ownar on nocount of euch delays, Subonniradtor ehall ba entiled to euch portion of the additonal compenaation 80
recelved by Contractor fom Owner as fs equitable under all of the cicumstencas, In the event that Contraotor praseoster 2
calm against Ovmer for additonal componsation for any delay, Suboontactor shall cooper {uly with Contractor in the
proseautlon thereof and shall pay caste and expenses Incurred In ‘cannection therevith, Including aclual attomey’s faes, to the:
‘extent that sald claim is made by Contractor at the request of Suteaniractor.

‘Subeontractor shall prapare and oblaln epprovel as required by the Gontmet Documsnte for, all shop drawings, detalis,
samples, and do ell other things nocassary and Thaldental to the proseautlon of his work {n confomance with Contractors
age ‘achedule, Subcontractor vill prapare dally, and eudmil to Gontractor, the Suncantraotar Dally Activity Report (EMRION

tote pra nT me corral are ahi foe giving of notices of dalgy (Suction 4), notices af clalms {Sction 8)
demends for the relgase OF gull pr len (Section 6), Of natices 19 ‘PRIFAGL 4 GaTautt (Sacuon 12), Wien Wy Bllurbar peri Stet
govem,

SECTION 6, CHANGES IN THE WORK

6A

82

aa
ot

68

Gubsantractor shrall make eny end elt ranpas In tho work dosolbad In the Contract Dacurnents end the Work Autharization
an dlected by Contractor in wrlling, Such change or vaitten direction shell notinvelidate this Agreement,

Wfnecessary, the contreot price slated In the Mastar Subcarract andlor Work Authorization and the {Ime for Suboantractor’s
parformanca shal be adjusted by appropriate additions or deductions mutuelly egieed upon ‘befora Subcontractor performs:
the changed wotk, Subcontractor shell supply Contreotor wilh ll dooumiantetion necessary to svbslantlate the amount ta of
deduction from the price or ime, If Conteaotor end Subcontractor cannot egrao on the amount of the addllon af deletion,
‘Subcontrantor shall nonetheless iImely porform the work #8 changed by Contractor's writen direction, Once ‘Subcontractor
veces Contractors ‘written dlraction, Subcontractor Ie anlely responsible for Umely parformance of the work as chenged by
‘the written direction,

Paymontfor chaagad work shall be made In accordance wilh Section 4.

‘Subontreotor ahali not moke any changas In tho work descdbad In the Work Authovtzation for a Parlcutar Prajact or In ay
way causa of ellow thal work to deviate from ths Contact Documonts without written dlraotion from Contractor, It
Subsoneator makes any chengoa {n tho wark.desedbed {a the Work Authorization for a Parlleular Project without walter
diraction from Gontrectar, auch change constitutes an apreement By Subcontractor that he will nat be pald for that chenuod
work; avn If he revelved verbal directon, wrltien or otherwise, fiom Owner or sny other person or ‘ently. In addition,
Subcontestor shall bo Iahlo for any and sll loosse, costs, axpansos, domagae, ‘and Ilabiity of any nature whatsaaver
‘sgsoalated wilh of In any way afsing out Gf eny auch chengo he mekos without valtten direction from Cantractor.

Unless agraed to ofhanwise, any changes In the work which arise from @ Subcontractors: Addidonal Work Authorization
(vay Wil require the signatures of both the Gontaotore Project Manegar and the ‘Superintendent. Each AWA wilt require

1aga two algnaturas by the Contractor, In addittan to thet of ha Subconvactor. An AWA Isintended (0 caver work performed
one Ye and mateda) basta or equivalent, An AWA Is only fo be vaed under clroumatunoas where Subcontractor and
Coniractor agree {hat @ conventional proposal, estimate and change order would not be sppropriate.

If 8 dispute atisea hatwaen Contractor and Subcontraotor ehout whether particular work Is @ change In the work desorbed tn
‘the Work Authorization for # Perllouler Prolect, Bubcontreator shell timely perform the disputed work and give wiltten nolica of

WEB170282any cialm for adullknal compansatlon for that work, Such written notice of claim must ba givan wihla ton (10) days after such
work |s parformed, Subcontractors failura to parform tha Wark and ove written natlen ‘vwdthin fan (10) rays ennatitiias an
‘egraement by him that he will not be pald for the disputed work,

66 No change, alteration, or modification to or deviation fram this Agreement, Ihe Ganlsact Documents, prime contrsct, plang, or
apactoallons, whether made In the manner aravided in this rovislon or not, shall release or exonarala, {a whole oF {n pert,

any bond or any susaly on any bond given In connection wth this ‘Agreement, and no rolice Is required to be given to such
surely of any such change, altaration, modification, or deviation, . .

SECTION. DAMAGES CAUSED BY DELAYS:

Wf Subcontractor should defauit In perfarmanca of the work dencribad (n the Work Authoyization or should otherwise commit any act
Which causes delay to tha prima contract work, Subcontractor shell be Hable forall Insane, casts, expensos, lsbillles and damages,

Including eonaequantlol damages and Iiquideted damages, austalned by Goniractor, or for whteh Contreolar may he lable ta Owner of
any olner panty begnyso ‘of Suicontrantors default, y "

SECTION 8, BONDING OF SUBGONTRAOTOR
Ifraqutrad by tho Work Authortzatlun, Subcontractor shall exacute a jabor and -matertel bond and performance bond, In an amount aqual

* toone hundred percent {roo of the Contrast Price. Said bondn ehell be exeauted by 2 corporate surely acceptebla to Contractor and

shall be In a form sallefantory
Contract Ducumants,

SECTIONS, ENB

fo Contractor, Contractor shall pay the premium on sali bonda unless othensisa provided hareln or (nthe

at Incase eult's Lon eny clati or lene for labor performed or materials used on or furishad to tha praiset, ‘Subconvestor
shell pay and satisly ahy such len ar Judgment as mey be established by tho declslon of the court In eald ault. Subcontractor
‘apres wilhin ten (10) days after wiiHen demand to cause tho effect of eny ‘auch ault or llen to be removed from the pramisse,
‘and in the event Subcanbactar shall fall 4a ta do, Contractor is authorized to use whatever means In Its dlecretion It may seem
appropriate fo cause sald flan or sult to be removed or dismissed and tha oot ‘thereof, togaiher with actual attamey’a faas,
shat pe immatiately Gud and payable to Contactor by SuucOntEctor. Subcontactor mey Migats any such lien Gr Su
provided he causes lhe effect thereof tobe removed, promplly in advanco, from the premises, and shell further do such things:
a8 may be necasaary to cause Cwner not la withhold any monles due to Contractor from Qymnar by reason of such lens or
sults, .

2 [tis undergtocd and agreed that the full and fa!thful parfonmanos of this Agreoment cn the part of Subcontractor (Inauding the
payment of any obligations dus fram Subocnlractor ta Contractor, and any amounts dus to labor or materalmen furnishing
Tabor or material for sald work) !s a condition pracadant to Subcontaptors right to racelve: payment for the work parfanmed,
‘add en many paid by CunUatular to SuoconWaclar wis the Garo of Us Agresunrar ral Le Tn presen wie Ws e favr
of fabor and ratertelinen furnishing lebior end materta! fo Subcontractor on the work hereln sutreontrectod.

SECTION 10, PROVIGIONS FOR INSPECTION

‘Subcontractor shel at all times fumish ta Contractor and his woproseriatvas safo end empis faollities for Inspecting materials ot tie site
‘of construction, shops, factories or any place of business of Subcontractor ant fle subcontractors and materatmen where materials
under thla Agreement may bs In course of preperation, process, manufacture or teatment, Subcontactor shall furilah to Cantractor as
‘often ea required by Cantyaotar, full reports of tne progresa of the work et any place where fmaterlols undar this Agreement may be (n the
‘course of preparation or manufacture, Such raports stall show tha progress ‘of such preparation and manufactura In euch details ad
may ba required by Gonlradtor, Including, but not mited to, any plang, drawings of diagrams In the coure of preparation,

SECTION 14, ih RI I

constructed oF propared by othera, It ehall be ths reaponelbilly af Suhoontractor to examine ancl accent, at the imo of dollvery or frat
qcoese, the Items so provided and thereupon handle, store ani (netall the ftama with such ail) and oare 36 to Ineure a satlefaniory
completion of the work, Use of such toma or commencement of work by Subcontractor tn ‘such areas shall bs deemed to constitute
acceptance theraof hy Subcontractor. Lass or damage dua to acts of Subconbaclor ‘shall bo charged ta tho acount af Subsontactor
‘and deduoted fom monies alhervise due under thie Agreement.

SECTION 12, PROTEGHION OF WORK

124 Gubsontractor shell effectually anaura and protect the work dono hareunder and ‘assume full rasponelullity for the condilian
theroof unl finel agcaptance by Aschiteat, Qwner and Conlractor. Subconbactor further apress fo provide euch protection BS
Is necessary to protant the work and te workmen of Gontractor, ‘Owner and other eubcontractors fram hie operations.

42.2 Subcontractor shall be Weble (ar any toes or damage to any work In place of to any equipment and ‘matertals on the Jod site
. ‘oavtaad by him or hls egonts, employees or quaste.

SECTION 15, LABOR RELATIONS AND LABOR AGREEMENTS

434 Contaoler Is stgnatary to the following unions: Gamentera, Cament Finishers, Lavarera, and Oparating’Engineera. tn
accordance with thls Secon, Subcontractor shall comply wih te terms and concltions of these agreements,

WEB17028342.2 Subsoatrantor shall kaap 9 repracentalivo at the ice alto during all {imon whan Subcantadtara wark fa tr pragrooo, and auah
representative shall be authorzed to represent Subcontractor es to all phasea of tha work. Prior fo ‘commengement of tha
work, Subcanlraclor ehalt notily Contractor who Subcontractor’s representative (s to be, and in the evant of any chenge of
feprasentatve Subcontractor shall notlfy Contactor who the new rapresentative le to be prior to auch changa becoming

413.3 ‘Subcontractor scknowedgas that Contractor hes. entered Into labor agreements covering work at Ite ponsthustion Jobaltes with
tha [ebor unlons listed In Section 43.1 mbove,, Subcontaotor hereby exprevely agrane that all of the provistons of the
a Apalleatta lahar agrraments ara interporatad Into this Agmament as IF thay ware rat forth In thalr entlraty.

434 ‘Suboantaator sgrass to comply with all of the tamms and conditions of those fabos agreements sel fort In Saatlon 13,1 sbove
‘ad If it were @ party lo eald agraaments induding algnalory etatua If required, Suboortzactor frther agrees to pay tho wage
‘ata, make the required ruat fund paymenta Inte the respoctive tabor trust funda, find obsarve tha hours and all olhar terme
‘and conditions eet forth In the respective labor ayrnements referancad In Section 13,4 dove, Guboontractor ngraKs ta: comply
‘with the term and provisions of sald egreemonta solting faith tlie arlavance and arbltratign provielons. Furthermore,
Subcontractor agrees to onmply with ihe terme end proviskans of seid egrarmants setting forth the Jurisdiction and soope of
‘work theraln for raotition of jurisdictional dlaautas. In tho absence of any such procedure or If auch procedure or If such
procedure falls to promptiy resolve tho urechetonal dlepute, Subcanteactor sgraas, at ts own cost and expanse and upon

vaquest ty Contactor, to take any and all tawful etaps to xecure & binding and finel determination of aald JurtsdicHonal dispute
‘by the Natonal Labor Relations Board, ing ‘em

42.8 Subcontractor acknawladgas that terme and conditions of tha labor agrasments with tha union iad In Section 13.4 above
may raul that Suscontraotor comply vith advitonal tabpr agreements with untons alfilated wih the AFL-CIO but not listed,
‘When the terme and conditions of tha belaw-relerenced labor agreements so require, Subcontractor ehall perform bis Job site

‘work pursuantto ail farms and conditions of an eppropdate labor agreement with a unton affitated witt the AFL-CIO,

13.8 ‘Subcontractor acknowedges thet Contractor Is @ momber of lie Conaluclon Employers’ Assoclallon, and ‘Subcontractor
‘agrees to work In unison wilh Contactor end other suboantractors and to be bound by the procedures to follow when
establishing 8 ial palo ayatom. Should there bs picketing on Contractors Job site, and Ganiractor establishes a rosarved

gale for Subcantraclor's purpose, It shall be the obligation of Subcontractor to continua the proper performance of his work
‘withoist Intarnuption of delay.

49.7 Gubconboctor furluer promises and agraas that he will bine and requié all of his subcontrestors and thelr subcontractors
‘erfomning fob eile work oF the tyne cavered by any of the shor agreements specitad in Section 13.1 above to agree fo all at
the foregoing promises and undartekings, to the same affect as hereln provided wilh raspeot to him.

13.8 Subcontractor she comply with ell equal employment opportunity end affirmative action cequiamants promulgated by any
qovemmental authority, fncluding, wthout imitations, the requirements of tho Civit Rights Act of 1964, Presidéntia) Exoouuva
Ordora No. 10026, 11114 end 11246, the Culifarnia Falr Employment Peavlices Act, the Amertosrt wilh Disabiiites Actof 799
‘and the Family Medical Leave Act of 1983. Subcontractor shall y with and agrees to bo bound by all ja Federal,
Stato ond local lawe enc regulallone, ohiding, but not Iimiled to, al! Falr Labor Slandarde Act provisior iforia Code
provistons covering the wurk, Upans wyuusl, Subcunuactor wprewy tu auboel esti payroll curls wa cunttracluy wo Tater Uva
three (3) working daya after lsbor has been peld,

13.9 ‘Ta the oxtent a Suboontraotor Is baund fo eny Collective Bargaining Agraemont at the time of aubmitting Its blo propozal,

Bubcontractér Hgroos to comply with the tarma and conditions of enld Collective Bargsining Agreement| ‘unil completion oF the.
‘particular Projact.

SECTION 44. RECOURSE BY CONTRARTOR
14 Falla ofPosformanon,

1444 Nofica to Guia, If Subcontractor at any Umo refuses or neglecls to supply enough prone: skilled workers and proper
motavtale, of falls to property snd diligently proseoute the work covered he agree t, o falls to make prompt paymantto
hie workere, eub-aubcontractars or avoplayg, ar bucamies dallnguent with respect to contributions or payments required fo ba

made to any health and welere, pansion, vacation, apprenticeship or other employes ‘benefit progrem or trust, orle otherwise

{iully of & material breach of a provieton of this Mastar Agreement, and fala within forty-oight (48) tours after racalpt of written

ralica (eller, facelmile, or amall) to commence end coniinve gatistactory corection of auch defavit wtih dilgence and

prom lness, ‘hen Contractor, withaut projudice to any righta or remedies, shall have the right to any oF all of the following
Ternedioat

{a) supply euoh number of workera and quanilly of materials, equipment and other facillies as Contractor deems nacasaary
for the complation of Subcantractor’s work, or eny part theracf which subcontractor has failed to coniptete or porform,
end charge the cost theraof to Subcontractor, who shall ba [lable for the payment of samo Including iifteen percent (15%)

for overhead, ten parcant (10%) for profit, and ecluel atlomoy fads Incurred as a radull of ‘Subcontractors fallure of
performance;

(b) content with ene or Aiore additional contactors to porfarn suctt part of Subcontractors work ae Contractor shall
determine wii provide the most expaditiaua complation of the total work and chatga the cost Inatuding overhead snd
prafit theraof to Subcontractor; and "

WEB170284A?

144.8

AA

142
44.24

4.2.2

e e

(©) withhold payment of any monias due Subcontractor pending corrective acon to the extent requited by and ta the
aliafaction of Contractor,

{d} Terminate Subcontrastor's right to perform under this Mester Agraement ond ues any materials, Implement, aquigmant,
appliances or tools fumlahad by or belonging ta Subsanirastor to complats Subcantractor’s work withaut any further
compensation to Suacantraciar tor stich uso, Contractor also may fumish those mateitala and equipment, andlor employ
such workera of subcantraotora es Contractor daams nacassary to melntaln the orderly progress: ‘of tha wark, tn suoh

.o88e, Subcantmotor shall bo ontitad to no further payment unt! the batanoa of Subconiraolo’s work hes baan
‘somptatad, At that tna, all of the costs Incurred by Contractor In pertoming Subcontractor's work, Insluding & markup of
fiaan narnant (18%) for ovarhaad and tan percent (16%) nraflt on euch: expanses, plus actual attomeye fans as
[Provided above, shall bp deducted fram any monies dus or to become due Subcontractor, Subcontractor ettell bo able
for the payment of any amaunt by whlch euch expenses may exceed the unpeld balance of the Contract Pitce.

in the event of an emergency affecting the safety of persons or property. Convector may proceed es above without
notice,

‘Tetmination for Convenience, Contmator may at any time and for any razcon lorminate Subcontracter’s carvices and work at
Contactors convenience, Gercollatan shell be by service of writian folios fo SuboonYactora place of businass. Upon
recalpt of such notice, Sobeortmolor shall, unieas tha natica clracts otharvise, immediately dlacantius tha work and placing
‘oyders for matorials, facies and suppiles In connatlon vith the performance of the Work Authorization for the Partioular
Projact so terminaled, and shall, If raquasted, make evary reasonetle ‘effort to procure cancellation of all axleling orders or
centraota enon tems salléfuctory to Contractor, or at tha option of Contractor, pie Contractor the right fo easume there
obligations directly, Including al! benefils to bo derived (harefrom, ‘Subcontractor shell thareatter do only such work as may be
necessary to prenaive and project the work already In prograas and to protect materlal end equipment on tha job eite ar tn
troneit thereta, Upon such teminalton, Subcontraotor shall be entited to paymtent In accorgance with Seatign 8 only as
followe: (the ‘aclus! cost of the work completed In conformity with this Agreement; alus, (2) such ther costa actually
Incurred by Subcontractor ag are permitted by tha prima contract and approved by Owner: plus (9) fiftean parcant (t5%} of the
cost of tha work rafarrad to In subparagraph (1} above for overhead and profit or the profit earned if tho contract had baen fully
performed, whishaver-ong Is lens. There shall be. deducted from auch sums as provided in this subparagraph tha amount of
any paymenia made to Subeontaator prlor to the dale of the ferminatan of thle Agreement Subcontractor ‘shall not be
‘enilted to any claim or claim of lien egainst Contractor or Owner for any additonal compensation of damages In the avant of
‘such termination and payment, +

rounds for Wihhelcna Payment, Gontmotor may withhold, or on account of eutisequently disovered evidonos, nullify the
ale OF par of any payment (otha extant neoassary to protact Contactar from fase, including casts and attomney’e fa88, OF

aceaunt of (1) defaciive work not ramediad: (2) claims tied oF reasonablo evidence Indicallng probable fling of clatm: (9)

fallure of Subcontractor to make paymants properly ta his subcontractors or for material, labor or idnge banafits; (4) 8

reaeonabla daubt that thle Agreamont can be compfated forthe balanas than unpald; (6) damage to another subcontractor; (8)

Penalties avesocod egatnel Contractor ur SuburituLiny (or (alone uf Subcuituciur ta campy with Stats, Faeral or togsl las

and regulating; or (7) any other ground for ‘wiltholding payment allowed by State or Faderal ta, of as otherwise provided tn

te Agrearrent ‘When tha above matters are reclifed, such emounts as then dup and owing shell be peld or credited to
jucontraotor,

In the evant Contractor terminates Subcontractor pursuent to Secon 14.1.4 (c) and it le ubsaquently determined in @ oMl
‘action or ethitratlon that It was © wrangful tennination of termlnalton for default wes improper, Contractors lability to
Subcontractor shall be no greater than It would bo If Contactar ‘would have tarminated Suboontractor for convantance
purouant to Sacllon 14.1.2, Moreover, the damegea, If my ‘Subcontactor shall bo entitled to chal bo limited to the
2 eration Wany, Subcontractor would be éntited to in the event of a termiatten for convanlence In accordance with

ion 44.4.2.

Bankruolay

Tamlnation Absent Gure, Upon the appointment of a receiver for Subcontractor or Upgn Subcontractor making an
‘asalgnment for the benefit of craditors or It Subcontractor seaks protection under the Bankruptcy Coda.or commits any other
‘aot of Insolvency, Contractor may tarminale this Agreement pan giving forty-alght (48) hovra written notice, by gerliied mall,
ta Buboontractor and Is quraty, if any. if sn onder for rellef Is antered under tha Bankruptoy Code with respect to
Subcontractor, Contraster may terminate this Agreement by glving forty elght {48} hours walttan notes, by cortited mall, to
‘Subcontraotor, Ils trustee, and its eurely, If eny. unless Subcontractor, the surety, or tha tustas:

(@) promptly cures all defaults;

(b) provides adaquats asaurenca af fulura perfomance;

{a} compensates Contractor for eotual pecuniany loas resuliing from such default;
{a) aesumes the abtigations of Subcontractor within the statutory tinve lente.

pled Remadian, Ir Subvontractor 1s not performing In accorda