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Consolidated CM - 2015 AgreementAGREEMENT FOR SERVICES (For contracts over $5,000 - CONSULTANT) This AGREEMENT made this 28 day of September, 2015, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Consolidated CM, having a principal place of business at 180 Grand Avenue, Suite 1520, Oakland, CA 94612. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 09/28/2015 and will continue in effect through 12/26/2017 unless terminated in accordance with the provisions of Article 7 of this Agreement. Any lapse in insurance coverage as required by Article 5, Section D of this Agreement shall terminate this Agreement regardless of any other provision stated herein. Initial ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: Perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in Exhibit "C" ( "Milestone Schedule "). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. 4835 -2267 -0361 v1 L4CT4706083 C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement; subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability 'insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit "D" ( "Payment Schedule'. In no event however shall the total compensation paid to CONSULTANT exceed $128,380.00. & Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D ". No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute, It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. D. Expenses CONSULTANT shall be responsible for all costs and. -expenses incident to the performance of services for CITY, including but not limited to; -all costs of equipment used or .provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be 4835- 2267 -03610 _2_ LAQ04706083 responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this; Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. G. Indemnification of Liability, Duty to Defend 1. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts; errors or omissions of CONSULTANT or CONSULTANT'S assistants,. employees or agents, including all claims relating to the injury or death of any person or damage to any property. 2. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives; agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or :resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, 4835- 2267- 0361vi _3_ LAM04706083 including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000.,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims'made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non - renewed, and not replaced with another claims' -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called "extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in Policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. F. State and Federal Taxes As CONSULTANT is not CITY'S .employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: ® CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf; a CITY will not withhold state or federal income tax from payment to CONSULTANT, ® CITY will not make disability insurance contributions on behalf of CONSULTANT; o CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. 4835 - 2267 -03610 -4- LAM04706083 ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, .Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by 'giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following. CONSULTANT'S failure to professionally and/or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing; if CITY terminates this Agreement due to CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY 4835 - 2267 -0361v1 _5_ LAM04706083 may have, CONSULTANT shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement; to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement; CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications,, alterations or changes to the terms of this Agreement shall be effective unless and until made'in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current form, and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptableto,CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities; expenses and fees; including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. 4835, 2267 -0361 v1 _6_ LACM70M C. Attorneys' Fees If any action at law or in equity; including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential, subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated v*ith CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises I or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied.herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding, upon CITY. 4835 -2267 -0361 v1 _7_ LAG104708083 H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A ", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Time of the Essence All dates and times referred to in this Agreement are of the essence. L. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: Consolidated CM By: - Name: Scott Ritter Title: Senior Vice President Social Security or Taxpayer Identification Number 94- 3210168 4835 - 2267 -0361v1 LAC104706083 -8- CITY: CITY OF GILROY By: Name: . Edward Tewes Title: Intern City Adminstrator Approved as to Fonn N City tomey 4835 -2267- 0361v1 LACk04706083 _9_ EXHIBIT "A" SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit "B ", Scope of Services ( "Services'). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign Matt. Scoble, who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment; transport ation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the. Services upon delivery to CONSULTANT of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e-mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, David Stubchaer shall be the designated City contact person(s). Notice to Proceed shall be deemed to have.been delivered upon actual receipt by.CONSULTANT or,if otherwise delivered as provided in the Section V.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed.all of the Services in accordance with the terms of this Agreement, .CI g' ' ITY .shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. 4835 - 2267.03610 _1 _ LAM04706083 Direct expenses are charges and fees not included in Exhibit `B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such, Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. .Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well - organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services famished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review; acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to; invoices, vouchers, canceled checks, time cards,, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall beL made available to CITY at the CITY's offices within five (5) business days after CITY's request. 4835- 2267 -0361vl _2_ LAM04706083 D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings; descriptions; documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under. this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the naive of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps; calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement. shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However; CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on. PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third . party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. 4635 - 2267 -03610 _3_ LAC104106083 H. NOTICES. Notices are to be sent as follows: CITY: David Stubchaer City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 CON_ SULTANT: Scott Ritter- Senior Vice President Consolidated CM 180 Grand Ave, Suite 1520 Oakland, CA 94612 I. FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.I. apply- If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.I. do not apply. DBE Program CONSULTANT shall comply with the requirements of Title 49; Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he /she has not employed or retained any company or person, other than a bona fide employee working .for the CONSULTANT;, to solicit or secure this Agreement,. and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the frill amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 4835- 2267 -03610 _4_ LAC104706083 EXHIBIT `:B" SCOPE OF SERVICES (See attached) 4335- 2267 -Mvl _ 1 _ LAM04706083 City of Gilroy Swanston and Casey Waterline Project SCOPE OF WORK TASKS: PRE - CONSTRUCTION PHASE Task 1 — Procedures Manual: CCM will prepare a project procedures manual outlining the standards for and flow of project documents. Include forms, filing system indexes and flowcharts as needed to fully explain the project administration procedures. The procedures manual will be prepared to City standards and will be subject to City approval. Following approval, the manual to will be introduced at the Pre - construction Meeting distributed to the Project Team. Task 2 — Constructability Review: CCM will constructability review the 50% and 95% complete design to anticipate construction challenges and plan for them in the bid documents. This will be formal review with a report, but there will also be an ongoing constructability process as we work with all members of the project team to identify potential issues and address them before construction begins. As part of the constructability effort, CCM will prepare a pre- construction schedule. Task 3 — Bid Phase Assistance: CCM will assist with the pre -bid meeting with contractors and assist as needed during the bid phase. CCM will help evaluate the low bidder for responsiveness and responsibility working closely with City staff. Task 4 — Pre - Construction Meeting: CCM will prepare an agenda for the pre- construction meeting, document the pre - con meeting with minutes, and distribute them to the Project Team. Following the pre -con meeting CCM proposes to conduit an informal value engineering work shop with the contractor, owner and CCM staff. We will discuss the project and actively search for VE changes to streamline the project and result in owner credits. Task 5 — Web -Based Project Management: CCM will establish a password protected project website to promote Team communication and document the project. The website will cover the construction phase of the project; contain all key time sensitive documents such as shop drawing, RFIs, as- builts, inspection reports, meeting minutes and change orders. It will be backed up with a full set of physical files which will be turned over to the City at the end of the project. City staff will have passwords to the website, and any assistance or training needed will be provided at no cost. CONSTRUCTION PHASE Task 1 — Contract Administration: CCM will create a physical filing system in compliance with the approved project procedures manual and implement the procedures needed to fully document the construction project. All key project documents will be available both physically and on -line. Contract Administration shall be conducted in compliance with the approved project procedures manual prepared under Pre - construction Phase Task 2. Task 2 — Weekly Progress Meetings: CCM will convene a weekly progress meeting, record the meeting with minutes and distribute them. The standing meeting items will be safety, progress, schedule, pending submittals, pending RFI's, pending changes, challenges, and upcoming work and any other appropriate matters. Immediately prior to the progress meeting, as needed, CCM will hold a private owners meeting to discuss sensitive or potentially adversarial issues and to review the specific tie -in schedule with each homeowner so there are no surprises. Task 3 — Change Order Review and Documentation: CCM will review all change orders and associated documents for validity, cost and schedule impacts. Prepare estimates and pre- negotiation spreadsheet for all valid changes and write City of Gilroy Swanston and Casey Waterline Project appropriate rejection letters for any proposed or requested changes which are included in the contract scope. As directed by the City, CCM will negotiate or provide support to the City to negotiate all construction changes. Upon conclusion of the negotiations CCM will prepare a record of negotiation and all required City documentation associated with the processing of the change order into a contract modification. Task 4 — Progress Payment Review: CCM shall review contractor's monthly progress payment requests for agreement with physical progress in the field and adjusting the request as needed to include any special withholdings associated with non- compliant work. CCM will review the draft progress payment with the Contractor so it can be corrected before formal submission. Task 5 — Request for Information (RFI), Shop drawings and Submittal Review: CCM shall log and review all incoming RFIs and Submittals. Initial review shall be for completeness and compliance to contract administration ,procedures. CCM shall maintain a standing item on the weekly progress meeting .agenda to review and discuss all outstanding RFIs and Submittals. Upon return of the RFIs and Submittals CCM shall review the design response to ensure compliance with the construction contract. If a change is noted a proposed change order (PCO) will be issued to the contractor for pricing. Task 6 Baseline and Monthly Schedule Review: CCM shall meet with the Contractor prior to the initial baseline schedule submittal to discuss the contract requirements and review in general the Contractor's intended work plan. Once the baseline schedule submittal has been received CCM shall review and analyze it for contract compliance, the viability of the work plan and to confirm project float has not been inappropriately sequestered. Once the baseline schedule is approved, CCM shall review the updates for changes to the accepted baseline schedule. Requests for time submitted by the Contractor shall also be reviewed for merit and appropriate recommendations made to the City. The monthly schedule update analysis shall be to determine effect and appropriateness of schedule revisions to the Critical Path in relation to base contract work, delays caused by the Contractor and work added by change orders. CCM's findings shall be returned to the Contractor. Task 7 — Perform Field Inspections: CCM will perform field inspections of the construction work for compliance with the contract and applicable permit and code requirements. Document the inspections with daily inspection reports itemizing the on -site manpower, the sub - contractors on -site and the activities undertaken by the Contractor that day. Post reports on -line and with physical signed copies in the project files. Construction inspector shall be completely familiar with the plans and specifications, as well as with current code, permit requirements, SWPPP, traffic control, safety and the schedule. Periodically the inspector will walk the job, meet with the Contractor's superintendent and review RFIs, change orders and submittals. The inspector will check that project materials on site have an associated approved submittal, are properly stored and that any needed special inspections or tests are scheduled. Inspector shall coordinate with all parties on the project and be available to answer local resident or business owner questions about project issues. When non- compliant work is identified inspector shall issue a non- compliance and if the non - compliance is not satisfactorily resolved by the end of the payment cycle CCM will recommend an appropriate withhold amount until the issue has be corrected. A running log of field issues with photographs of the specific concerns shall be maintained. Inspector shall review this at the weekly progress meeting to ensure the Contractor understands the issue and addresses it in a timely manner. The inspector shall maintain a record set of drawing as- builts showing any field changes, RFI's and change orders. City of Gilroy Swanston and Casey Waterline Project Task 8 — SWPPP Compliance Oversight: CCM will provide a certified Qualified SWPPP Practitioner (QSP) to oversight the Contractor's storm water control efforts providing notification and documentation as needed of any concerns arising from such oversight without voiding the Contractor's responsibility to maintain a SWPPP compliant site and conform to all approved storm water control plans. Task 9 — Materials Testing and Special Inspection: CCM will review all Contractor requests for materials testing or special inspection and if upon such review finds the work is ready for special inspection and /or materials testing shall schedule the needed special inspections and testing. A log will be maintained of site visits by the special inspection and testing staff to assist in the monthly review of their invoices. A file of all testing and special inspection results will be maintained on -site. CCM will manage this work, which is typically performed on a Time and Material basis, by the testing labs. Task 10 — Claims Avoidance and Analysis: Throughout the project, CCM shall actively work to identify and to resolve disputes fairly, to keep work moving on schedule, and ultimately, to achieve superior quality in the final product. Should a dispute occur, CCM will analyze the claim and work to resolve the dispute at the lowest level and at the earliest opportunity. CCM shall hold regular meetings to discuss outstanding dispute issues and to actively work toward resolution. Formal forensic claim analysis support is outside the scope of this contract, however CCM shall make a preliminary review of any such claims and provide those finding to the City along with a recommendation as to how to proceed. Task 11 — Neighborhood Outreach: All residents and businesses affected by the project will be provided notice in writing, a minimum of 72 hours in advance by the contractor. CCM shall review and approve the written notices prior to them being sent. CCM shall respond to all neighborhood inquiries about the project coordinating closely with City staff to ensure a rapid and consistent response /resolution. CCM will work with the City and the Contractor to try to mitigate the impact of the construction on the neighborhood. POST CONSTRUCTION PHASE Task 1 — Project Closeout: CCM will plan, coordinate and otherwise assist with the close -out process, beginning with start-up and commissioning and continuing through the creation of contract punchlists, the final job walk and the filing of the notice of completion. CCM will assist by performing all needed inspections associated with punch listed work, coordinating site visits by permit authorities to obtain permit sign off, estimating the retainage for pending punch list items; reviewing and organizing guarantees, certifications and warranties; and, in general, working with the City to ensure that all required contract items have been provided, all punch list items have been resolved, as- builts have been accepted and a notice of completion has been filed. CCM will review the Contractor's finished record drawings for completeness, accuracy, and conformance with the bridging documents one last time. CCM will ensure that all responsible organizations have signed warranties, guarantees, and equipment and systems certifications so that they are properly in- force. Should there be any open disputes, CCM will work with the Contractor to resolve them fairly, amicably and in a timely manner. EXHIBIT "C" MILESTONE SCHEDULE (See attached) 4835 - 2267 -0361 v1 LAC104706083 MILESTONE SCHEDULE SWANSTON AND CASEY WATERLINE PROJECT ALL DATES ARE TENTATIVE) MILESTONE DESCRIPTION DATES NOTICE TO PROCEED SEPTEMBER 29, 2015 PRE - CONSTRUCTION PHASE DECEMBER 2015 — MAY 2016 • CONSTRUCTABILITY REVIEW OF 90% OR 95% DESIGN DRAWINGS AND SPECIFICATIONS • PROCEDURES MANUAL • BID PHASE ASSISTANCE • PRE- CONSTRUCTION MEETING • WEB -BASED PROJECT MANAGEMENT SYSTEM CONSTRUCTION PHASE MAY 2016 -JUNE 2016 • SWPPP COMPLIANCE OVERSIGHT • CONSTRUCTION MANAGEMENT and ADMINISTRATION • FIELD INSPECTION • SPECIAL INSPECTIONAND MATERIALS TESTING (CEL) • REVIEW CONTRACTOR SUBMITTALS & RFIS • CONSTRUCTION MEETINGS • SCHEDULE MANAGEMENT • PROGRESS PAYMENT REVIEW • AS- NEEDED PUBLIC RELATIONS SUPPORT CHANGE ORDER R@VI2W AND CLAIMS SUPPORT POST CONSTRUCTION PHASE JULY 2016 • PROJECT CLOSEOUT EXHIBIT "D" PAYMENT SCHEDULE (See attached) 4835.2267.0361v1 LAC104706083 J CON40Q13, /TED Professional Construction Management Estimated Task Budget to Perform Construction Management Services for the City of Gilroy Swanston and Casey Waterline Project Task Task Description `v pq � C � C O •V C U o V O a C O •V C u 61 v"i O a � E ¢ Y H � � d � Y Y A ~ o v Notes Hourly Rate $183 $127 $169 $71 Hours Hours Hours Hours Hours 1.1 Procedures Manual 8 0 0 9 17 $2,103 1.2 Constructabiltiy Review 40 24 8 8 80 $12,288 1.3 Bid Phase Assistance 6 0 0 0 6 $1,098 1.4 Pre - Contruction meeting 8 0 0 2 10 $1,606 1.5 Web -Based Project Management 4 0 0 12 16 $1,584 Hours Hours Hours Hours Hours 2.1 Contract Administration 24 0 0 68 92 $9,220 2.2 Weekly Progress Meetings 32 32 0 8 72 $10,488 2.3 Change Order Review and Documentation 24 0 0 16 40 $5,528 2.4 Progress Payment Review 8 16 0 4 28 $3,780 2.5 RFI, Shop Drawing & Submittal Review 32 24 0 0 56 $8,904 2.6 Schedule review 16 0 28 0 44 $7,660 2.7 Field Inspection 0 232 0 0 232 $29,464 2.8 SWPPP Compliance Oversight 8 24 0 0 32 $4,512 2.9 Special Inspections and Materials Testing (CEL) $9,090 Administrative Processing Fee (10 %) for Subconsultant Invoices (CEL) $910 2.10 Claims Avoidance and Analysis 8 0 0 0 8 $1,464 2.11 Neighborhood Outreach 4 8 0 8 20 $2,316 Hours Hours Hours Hours Hours 3.1 Project Close -out 24 64 0 40 128 $15,360 ODC Totals' .T CONSCMO -01 DAFKHAMI AcoR�" CERTIFICATE OF LIABILITY INSURANCE MM/DDmvY) 11 DATE (MMIDDI5 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER License # 0757776 Concord, CA - HUB International Insurance Services Inc. 2300 Clayton Rd. Concord, CA 94520 NTACT NAME: PHONE (925) 609 -6500 a� No): (925) $09 -6550 A/C No Ext: ADDRIESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A:Tokio Marine Specialty Insurance Company 23850 INSURED Consolidated C.M. 180 Grand Avenue, Suite 1520 Oakland, CA 94612 INSURER B: Hartford Accident and Indemnity Company 22357 INSURER C.:RSUI Indemnity Company 22314 INSURER D :Travelers Property Casualty Company of America 25674 INSURER E: Columbia Casualty Company 31127 INSURER F: COVERAGES CFRTIFICATF NUMBFR- REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE'POLICY.PERIOD INDICATED._ NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE 18SUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE Of INSURANCE INSD WVD POLICYNUMBER POLICY EFF MM/DD POLICY EXP MM /DDIYYYY LIMITS _ A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE a OCCUR X PPK1410536 11/01/2015 11/01/2016 PREMISES Ea occurrence $ 100,000 X MED EXP (Any one person) $ BI/PD Ded: 5,000 PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE $ 2,000,000 POLICY a RC O-- F LOC PRODUCTS - COMP /OP AGG $ 2,000,000 $ OTHER: AUTOMOBILE LIABILITY EOa BIKED SINGLE LIMIT $ 1,000,000 BODILY INJURY (Per person) $ B X ANYAUTO X 57UECPV8943 03123/2015 03/2312016 ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ NON-OWNED X HIRED AUTOS X AUTOS $ �( Ded:0 UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 C X 'EXCESS LIAS CLAIMS -AAADE NHA238986 11101/2015 11/01/2016 DED I X I RETENTION$ 0 $ D WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER /EXECUTIVE YIN OFFICER/MEMBER EXCLUDED? N❑ (Mandatory In NH) N / A PJUB- 8438AO040 -15 08/01/2015 08/01/2016 X STATUTE ERA E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 E PROFESSIONAL LIAB C2054118831 08/0112015 08/0112016 Per Claim 2,000000 E Claims -Made 02054118831 0810112015 08101/2016 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS/ LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) Re: Swanston & Casey Water Service and Water Main Replacement Project City of Gilroy, its officers, elected or appointed officials, employees, agents and volunteers as Additional Insured as respects General Liability, and coverage applies on a Primary basis, per attached forms CG2010 0704, CG2037 0704 amd PIC -GLN -0201013; and as Additional Insured as respects Auto Liability per HA9916 0312. As required by written contract. Professional Liability deductible: 10,000 Professional Liability Knowledge Date: 811/2004 City of Gilroy Public Works Division 7351 Rosanna Street Gilroy, CA 95020 ACORD 25 (2014/01) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE rat 01988-2014 The ACORD name and logo are registered marks of ACORD reserved. POLICY NUMBER: PPK1410536 COMMERCIAL GENERAL LIABILITY CG 2010 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Locations Of Covered Operations City of Gilroy,'its employees, officers, officials, and volunteers Information required to complete this Schedule if not shown above will' be shown in the Declarations. A. Section II — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: 1. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; in the performance of your ongoing operations for the additional insured(s) at the location(s) desig- nated above. B. With respect to the insurance afforded to these additional insureds, the following additional exclu- sions apply: This insurance does not apply to "bodily injury" or "property damage" occurring after: 1. All work, including materials, parts or equip - ment furnished in connection with such work, on the project (other than service, maintenance or repairs) to be performed by or on behalf of the additional insured(s) at the location of the covered operations has been completed; or 2. That portion of "your work" out of which the injury or damage arises has been put to its in- tended use by any person or organization other than another contractor or subcontractor en- gaged in performing operations for a principal as a part of the same project. POLICY NUMBER: PPK1410536 COMMERCIAL GENERAL LIABILITY CG 20370704 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS - COMPLETED OPERATIONS This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): Location And Description Of Completed Operations. City of Gilroy, its employees, officers, officials, and volunteers Information required to complete this Schedule if not shown above will be shown in the Declarations. Section 11 — Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule, but only with respect to liability for "bodily injury" or "property dam- age" caused, in whole or in part, by "your work" at the location designated and described in the sched- ule of this endorsement performed for that additional insured and included in the "products- completed operations hazard ". CG 20 37 07 04 0 ISO Properties, Inc., 2004 Page 1 of 1 13 POLICY NUMBER: PPK1410536 PIC -GLN -020 (10/13) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PRIMARY AND NON- CONTRIBUTORY INSURANCE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE PART A. SECTION IV— COMMERCIAL GENERAL LIABILITY CONDITIONS, 4. Other Insurance, and all subparts thereof, as contained in the policy is deleted in its entirely and replaced with the following condition: 4. Other Insurance If all of the other insurance permits contribution by equal shares, we will follow this method unless the insured is required by written contract signed by both parties, to provide insurance that is primary and noncontributory, and the "insured contract" is executed prior to any loss. Where required by a written contract signed by both parties, this insurance will be primary and non - contributing only when and to the extent as required by that contract. However, under the contributory approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contributory by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit if insurance to the total applicable limits of insurance of all insurers. All other terms, conditions and exclusions under the policy are applicable to this endorsement and remain unchanged. Page 1 of 1 POLfCY.NUMBER. 57UECPV8943 COMMERCIAL AUTOMOBILE HA 99 16 03 12 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other provisions of the Coverage Form, the provisions of this endorsement apply. 1. . BROAD FORM INSURED A. Subsidiaries and Newly Acquired or Formed Organizations The Named Insured shown in the Declarations is amended to include: (1) Any legal business entity other than a partnership or joint venture, formed as a subsidiary in which you have an ownership interest of more than 50% on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that is an "insured" under any other automobile policy or would be an "insured" under such a policy but for its termination or the exhaustion of its Limit of Insurance. (2) Any organization that is acquired or formed by you and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (a) That is a partnership or joint venture,. (b) That is an "insured" under any other policy, (c) That has exhausted its Limit of .Insurance under any other policy, or (d) 180 days or more after its acquisition or formation by you, unless you have given us notice of the acquisition or formation. Coverage does not apply to "bodily injury" or "property damage" that results from an "accident" that occurred before you formed or acquired the organization. B. Employees as Insureds Paragraph A.1. -WHO IS AN INSURED - of SECTION Il LIABILITY COVERAGE is amended to add: d. Any "employee" of yours while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs, C. Lessors as Insureds Paragraph A.1. - WHO IS AN INSURED - of Section II - Liability Coverage is amended to add: e. 'The lessor of a covered "auto" while the "auto" is leased to you under a written agreement it (1) The agreement requires you to provide direct primary insurance for the lessor and (2) The "auto" is leased without a driver. Such a leased "auto will be considered a covered "auto" you own and not a covered "auto you'hire. D. Additional Insured if Required by Contract (1) Paragraph A.1. - WHO IS AN INSURED - of Section II - Liability Coverage is amended to add: f. When you have agreed, in a written contract or written agreement, that a person or organization be added as an additional insured on your business auto policy, such person or organization is an "insured ", but only to the extent such person or organization is liable for "bodily injury' or "property damage caused by the conduct of an "insured" under paragraphs a. or b. of Who Is An Insured with regard to the ownership, maintenance or use of a covered "auto." © 2011, The Hartford (Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc., with its permission.) Page 1 of 5 The insurance afforded to any such E. Primary and Non - Contributory If additional insured applies only if the Required by Contract "bodily injury" or "property damage" Only with respect to insurance provided to occurs: an additional insured in 1.D. - Additional (1) During the policy period, and Insured If Required by Contract, the (2) Subsequent to the execution of such following provisions apply: written contract, and (3) Primary Insurance When Required By (3) Prior to the expiration of the period Contract of time that the written contract This insurance is primary if you have requires such insurance be provided agreed in a written contract or written to the additional insured. agreement that this insurance be (2) How Limits Apply primary. If other insurance is also primary, we will share with all that other If you have agreed in a written contract insurance by the method described in or written agreement that another Other Insurance 5.d. person or organization be added as an additional insured on your policy, the (4) Primary And Non- Contributory To Other most we will pay on behalf of such Insurance When Required By Contract additional insured is the lesser of: If you have agreed in a written contract (a) The limits of insurance specified in or written agreement that this insurance the written contract or written is primary and non - contributory with the agreement; or additional insured's own insurance, this (b) The Limits of Insurance shown in insurance is primary and we will not seek contribution from that other the Declarations. insurance. Such amount shall be a part of and not Paragraphs (3) and (4) do not apply to other in addition to Limits of Insurance shown insurance to which the additional insured in the Declarations and described in this has been added as an additional insured. Section. When this insurance is excess, we will have no (3) Additional Insureds Other Insurance duty to defend the insured against any suit if If we cover a claim or "suit" under this any other insurer has a duty to defend the Coverage Part that may also be covered insured against that "suit ". If no other insurer by other insurance available to an defends, we will undertake to do so, but we will additional insured, such additional be entitled to the insured's rights against all insured must submit such claim or "suit" those other insurers. to the other insurer for defense and When this insurance is excess over other indemnity. insurance, we will pay only our share of the However, this provision does not apply amount of the loss, if any, that exceeds the sum to the extent that you have agreed in a of: written .contract or written agreement (1) The total amount that all such other that this insurance is primary and non- insurance would pay for the loss in the contributory with the additional insured's absence of this insurance; and own insurance. (2) The total of all deductible and self - insured (4) Duties in The Event Of Accident, Claim, amounts under all that other insurance. Suit or Loss We will share the remaining loss, if any, by the If you have agreed in a written contract method described in Other Insurance 5.d. or written agreement that another person or organization be added as an 2. AUTOS RENTED BY EMPLOYEES additional insured on your policy, the Any "auto" hired or rented by your "employee" additional insured shall be required to on your behalf and at your direction will be comply with the provisions in LOSS considered an "auto" you hire. CONDITIONS 2. - DUTIES IN THE The OTHER INSURANCE Condition is amended EVENT OF ACCIDENT, CLAIM , SUIT by adding the following: OR LOSS — OF SECTION IV — BUSINESS AUTO CONDITIONS, in the same manner as the Named Insured. © 2011, The Hartford (Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc., with its permission.) , Page 2 of 5