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HomeMy WebLinkAboutAGMT - Nichols Consulting Engineers CHTD (2020 Pavement Management Report)PROFESSIONAL SERVICES AGREEMENT for 2020 Pavement Management Report between City of Seal Beach 211 - 8th Street Seal Beach, CA 90740 P Nichols Consulting Engineers, CHTD, 17050 Bushard Ave., Suite 200 Fountain Valley, CA 92708 (717) 848-8897 This Professional Service Agreement ("the Agreement*) is made as of September 4, 2019 (the "Effective Date"), by and between Nichols Consulting Engineers, CHTD. ("Consultant"), a Nevada corporation and the City of Seal Beach ("Citi'), a California charter city, (collectively, "the Parties"). RECITALS A. City desires certain professional engineering services for the 2020 Pavement Management Plan. B. Pursuant to the authority provided by its City Charter and Seal Beach Municipal Code § 3.20.025(C), City desires to engage Consultant to provide Professional Engineering services in the manner set forth herein and more fully described in Section 1.0. C. Consultant represents that the principal members of its firm are qualified professional Engineers and are fully qualified to perform the services contemplated by this Agreement in a good and professional manner; and it desires to perform such services as provided herein. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows. AGREEMENT 1.0 Scope of Services 1.1. Consultant shall provide those services (uServicasl set forth in the Scope of Services attached hereto as Exhibit A, which is hereby incorporated by this reference. To the extent that there is any conflict between Exhibit A and this Agreement, this Agreement shall control. 1.2. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances and in a manner reasonably satisfactory to City. 1.3. In performing this Agreement, Consultant shall comply with all applicable provisions of federal, state, and local law. 1.4. As a material inducement to City to enter into this Agreement, Consultant hereby represents that it has the experience necessary to undertake the Services to be provided. In light of such status and experience, Consultant hereby covenants that it shall follow the customary professional standards in performing all Services. The City relies upon the skill of Consultant, and Consultant's staff, if any, to do and perform the Services in a skillful, competent, and professional manner, and Consultant and Consultant's staff, shall perform the Services in such manner. Consultant shall, at all times, meet or exceed any and all applicable professional standards of care. The acceptance of Consultant's work by the City shall not operate as a release of Consultant from such standard of care and workmanship. 1 of 13 1.5. Consultant will not be compensated for any work performed not specified in the Scope of Services unless the City authorizes such work in advance and in writing. 2.0 Term 2.1. The term of this Agreement shall commence on the Effective Date and shall remain in full force and effect until July 31, 2020 unless sooner terminated as provided in Section 5.0 of this Agreement. 3.0 Consultant's Compensation 3.1. City will pay Consultant in accordance with the hourly rates shown on the fee schedule set forth in Exhibit A for Services but in no event will the City pay more than the total not -to -exceed amount of $21,300 for the Original Term. 4.0 Method of Payment 4.1. Consultant shall submit to City monthly invoices for all Services rendered pursuant to this Agreement. Such invoices shall be submitted within 15 days of the end of the month during which the Services were rendered and shall describe in detail the Services rendered during the period, the days worked, number of hours worked, the hourly rates charged, and the Services performed for each day in the period. City will pay Consultant within 30 days of receiving Consultant's invoice. City will not withhold any applicable federal or state payroll and other required taxes, or other authorized deductions from payments made to Consultant. 4.2. Upon 24-hour notice from City, Consultant shall allow City or City's agents or representatives to inspect at Consultant's offices during reasonable business hours all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement. City's rights under this Section 4.2 shall survive for three years following the termination of this Agreement. 5.0 Termination 5.1. This Agreement may be terminated by City, without cause, or by Consultant based on reasonable cause, upon giving the other party written notice thereof not less than 30 days prior to the date of termination. 5.2. This Agreement may be terminated by City upon 10 days' notice to Consultant if Consultant fails to provide satisfactory evidence of renewal or replacement of comprehensive general liability insurance as required by this Agreement at least 20 days before the expiration date of the previous policy. 2of13 6.0 Party Representatives 6.1. The Director of Public Works is the City's representative for purposes of this Agreement. 6.2. Charlene R. Palmer is the Consultant's primary representative for purposes of this Agreement. Charlene R. Palmer shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the Services hereunder. Consultant may not change its representative without the prior written approval of City, which approval shall not be unreasonably withheld. 7.0 Notices 7.1. All notices permitted or required under this Agreement shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the party at the following addresses: To City: City of Seal Beach 21148th Street Seal Beach, California 90740 Attn: Director of Public Works To Consultant: Nichols Consulting Engineers, CHTD 17050 Bushard Ave., Suite 200 Fountain Valley, CA 92708 Attn: Charlene R. Palmer 7.2. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. 3 of 13 8.0 Independent Contractor 8.1. Consultant is an independent contractor and not an employee of the City. All work or other Services provided pursuant to this Agreement shall be performed by Consultant or by Consultant's employees or other personnel under Consultant's supervision, and Consultant and all of Consultant's personnel shall possess the qualifications, permits, and licenses required by State and local law to perform such Services, including, without limitation, a City of Seal Beach business license as required by the Seal Beach Municipal Code. Consultant will determine the means, methods, and details by which Consultant's personnel will perform the Services. Consultant shall be solely responsible for the satisfactory work performance of all personnel engaged in performing the Services and compliance with the customary professional standards. 8.2. All of Consultant's employees and other personnel performing any of the Services under this Agreement on behalf of Consultant shall also not be employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant and Consultant's personnel shall not supervise any of City's employees; and City's employees shall not supervise Consultant's personnel. Consultant's personnel shall not wear or display any City uniform, badge, identification number, or other information identifying such individual as an employee of City; and Consultant's personnel shall not use any City e-mail address or City telephone number in the performance of any of the Services under this Agreement. Consultant shall acquire and maintain at its sole cost and expense such vehicles, equipment and supplies as Consultant's personnel require to perform any of the Services required by this Agreement. Consultant shall perform all Services off of City premises at locations of Consultant's choice, except as otherwise may from time to time be necessary in order for Consultant's personnel to receive projects from City, review plans on file at City, pick up or deliver any work product related to Consultant's performance of any Services under this Agreement, or as may be necessary to inspect or visit City locations and/or private property to perform such Services. City may make a computer available to Consultant from time to time for Consultant's personnel to obtain information about or to check on the status of projects pertaining to the Services under this Agreement. 8.3. Consultant shall be responsible for and pay all wages, salaries, benefits and other amounts due to Consultant's personnel in connection with their performance of any Services under this Agreement and as required by law. Consultant shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: Social Security taxes, other retirement or pension benefits, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance. Notwithstanding any other agency, State, or federal policy, rule, regulation, statute or ordinance to the contrary, Consultant and any of its officers, employees, agents, and subcontractors providing any of the Services under this Agreement shall not 4 of 13 become entitled to, and hereby waive any claims to, any wages, salaries, compensation, benefit or any incident of employment by City, including but not limited to, eligibility to enroll in, or reinstate to membership in, the California Public Employees Retirement System ("PERS") as an employee of City, and entitlement to any contribution to be paid by City for employer contributions or employee contributions for PERS benefits. 8.4. Consultant shall indemnify and hold harmless City and its elected officials, officers, employees, servants, designated volunteers, and agents serving as independent contractors in the role of City officials, from any and all liability, damages, claims, costs and expenses of any nature to the extent arising from or caused by Consultant's personnel practices, or to the extent arising from or caused by the violation of any of the provisions of Section 8.0. In addition to all other remedies available under law, City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this Section. This duty of indemnification is in addition to Consultant's duty to defend, indemnify and hold harmless as set forth in Sections 9.0 and 16.0 of this Agreement. 9.0 PERS Compliance and Indemnification 9.1. General Reguirements. The parties acknowledge that City is a local agency member of PERS, and as such has certain pension reporting and contribution obligations to PERS on behalf of qualifying employees. Consultant agrees that in providing its employees and any other personnel to perform any work or other Services under this Agreement, Consultant shall assure compliance with the Public Employees' Retirement Law, commencing at Government Code § 20000, the regulations of PERS, and the Public Employees' Pension Reform Act of 2013, as amended. Without limitation to the foregoing, Consultant shall assure compliance with regard to personnel who have active or inactive membership in PERS and to those who are retired annuitants and in performing this Agreement shall not assign or utilize any of its personnel in a manner that will cause City to be in violation of the applicable retirement laws and regulations. 9.2. Indemnification. In the event that Consultant or any of its officers, employees, agents, or subcontractors providing any of the Services under this Agreement, is determined by a final enforceable decision of a court of competent jurisdiction or by PERS to be a common law employee of City, to be eligible for enrollment in PERS as an employee of City, or to be reinstated from PERS retirement as an employee of City, Consultant shall defend (with legal counsel approved by City, whose approval shall not be unreasonably withheld), indemnify and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its officers, employees, agents or subcontractors, as well as for the payment of penalties and 5of13 interest on such contributions, and any other any fees, fines, reimbursements, losses, or other monetary damages of any kind whatsoever that is claimed, asserted, or alleged, which would otherwise be the responsibility of City. This duty of indemnification is in addition to Consultant's duty to defend, indemnify and hold harmless as set forth in Sections 8.0 and 16.0 of this Agreement. 10.0 Confidentiality Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without prior written authorization by City. City shall grant such authorization if applicable law requires disclosure. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement. 11.0 Subcontractors No portion of this Agreement shall be subcontracted without the prior written approval of the City. Consultant is fully responsible to City for the performance of any and all subcontractors. 12.0 Assignment Consultant shall not assign or transfer any interest in this Agreement whether by assignment or novation, without the prior written consent of City. Any purported assignment without such consent shall be void and without effect. 13.0 Inspection and Audit of Records Consultant shall maintain complete and accurate records with respect to all Services and other matters covered under this Agreement, including but expressly not limited to, all Services performed, salaries, wages, invoices, time cards, cost control sheets, costs, expenses, receipts and other records with respect to this Agreement. Consultant shall maintain adequate records on the Services provided in sufficient detail to permit an evaluation of all Services in connection therewith. All such records shall be clearly identified and readily accessible. At all times during regular business hours, Consultant shall provide City with free access to such records, and the right to examine and audit the same and to make copies and transcripts as City deems necessary, and shall allow inspection of all program data, information, documents, proceedings and activities and all other matters related to the performance of the Services under this Agreement. Consultant shall retain all financial and program service records and all other records related to the Services and performance of this Agreement for at least three (3) years after expiration, termination or final payment under this Agreement, whichever occurs later. City's rights under this Section 13.0 shall survive for three (3) years after expiration, termination or final payment under this Agreement, whichever occurs later. 6of13 14.0 Safety Requirements All work performed under this Agreement shall be performed in such a manner as to provide safety to the public and to meet or exceed the safety standards outlined by CAL OSHA. The City may issue restraint or cease and desist orders to Consultant when unsafe or harmful acts are observed or reported relative to the performance of the Services. Consultant shall maintain the work sites free of hazards to persons and property resulting from its operations. Consultant shall immediately report to the City any hazardous condition noted by Contractor. 15.0 Insurance 15.1. Consultant shall not commence work under this Agreement until it has provided evidence satisfactory to the City that Consultant has secured all insurance required under this Section. Consultant shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements shall be received and approved by the City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15.2. Consultant shall, at its expense, procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of this Agreement. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in California, and satisfactory to the City. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); (3) Workers' Compensation and Employer's Liability coverages; and (4) if required by the City, Professional Liability coverage (or Errors and Omissions coverage). Consultant shall maintain limits no less than: (1) General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage and if Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers' Compensation in the amount required by law and Employer's Liability: $1,000,000 per accident and in the aggregate for bodily injury or disease; and (4) Professional Liability (or Errors and Omissions Liability, as appropriate): $1,000,000 per claim/aggregate, and 7of13 if a "claims made" policy is provided, then the policy shall be endorsed to provide an extended reporting period of not less than three years. 15.3. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to state: (1) coverage shall not be suspended, voided, reduced or canceled except after 30 days prior written notice by certified mail, return receipt requested, has been given to the City; (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, (3) coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant's scheduled underlying coverage and that any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Consultant's insurance and shall not be called upon to contribute with it; (4) for general liability insurance, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work; and (5) for automobile liability, that the City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible. 15.4. All insurance required by this Section shall contain standard separation of insureds provisions and shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, and volunteers. 15.5. Any deductibles or self-insured retentions shall be declared to and approved by the City. Consultant guarantees that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, employees, agents, and volunteers; or (2) the Consultant shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses. 16.0 Indemnification, Hold Harmless, and Duty to Defend Consultant and the City agree that the City, its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees" in this Section 16.0) should, to the fullest extent permitted by law, be fully protected from any loss, injury, damage, claim, liability, lawsuit, cost, expense, attorneys' fees, litigation costs, defense costs, court costs 8of13 and/or any other cost arising out of or in any way related to the performance of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to the City and all other Indemnitees. Consultant acknowledges that the City would not have entered into this Agreement in the absence of the commitment of Consultant to indemnify and protect the City and the other Indemnitees, as set forth in this Agreement. 16.1. Indemnity for Professional Services. To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, indemnify and hold harmless the City, its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively "Indemnitees" in this Section 16.0), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants and other professionals, and all costs associated therewith, and reimbursement of attorneys' fees and costs of defense (collectively "Claims"), whether actual, alleged or threatened, which arise out of, pertain to, or relate to, in whole or in part, the negligence, recklessness or willful misconduct of Consultant, and/or its officers, agents, servants, employees, subcontractors, contractors or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of professional services under this Agreement. Consultant shall defend the Indemnitees in any action or actions filed in connection with any Claims with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 16.2. Other Indemnitees. Other than in the performance of professional services, and to the fullest extent permitted by law, Consultant shall, at its sole cost and expense, protect, defend, hold harmless and indemnify the Indemnitees from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, judgments, penalties, liens and losses of any nature whatsoever, including fees of accountants, attorneys and other professionals, and all costs associated therewith, and the payment of all consequential damages (collectively "Damages"), in law or equity, whether actual, alleged or threatened, which arise out of, pertain to, or relate to the acts or omissions of Consultant, its officers, agents, servants, employees, subcontractors, materialmen, suppliers, or contractors, or their officers, agents, servants or employees (or any entity or individual that Consultant shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Damages arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. Consultant shall defend the Indemnitees in any action or actions filed in connection with any 9of13 Damages with counsel of the Indemnitees' choice, and shall pay all costs and expenses, including all attorneys' fees and experts' costs actually incurred in connection with such defense. Consultant shall reimburse the Indemnitees for any and all legal expenses and costs incurred by the Indemnitees in connection therewith. 16.3. Subcontractor Indemnification. Consultant shall obtain executed indemnity agreements with provisions identical to those in this Section 16.0 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnities, Consultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Claims in law or equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of, pertain to, or relate to the acts or omissions of Consultant's subcontractor, its officers, agents, servants, employees, subcontractors, materialmen, contractors or their officers, agents, servants or employees (or any entity or individual that Consultant's subcontractor shall bear the legal liability thereof) in the performance of this Agreement, including the Indemnitees' active or passive negligence, except for Claims or Damages arising from the sole negligence or willful misconduct of the Indemnitees, as determined by final arbitration or court decision or by the agreement of the Parties. 16.4. The obligations of Consultant under this or any other provision of this Agreement shall not be limited by the provisions of any workers' compensation act or similar act. Consultant expressly waives any statutory immunity under such statutes or laws as to the Indemnitees. Consultant's indemnity obligation set forth in this Section 16.0 shall not be limited by the limits of any policies of insurance required or provided by Consultant pursuant to this Agreement. 16.5. Consultant's covenants under this Section 16.0 shall survive the expiration or termination of this Agreement. 17.0 Equal Opportunity Consultant affirmatively represents that it is an equal opportunity employer. Consultant shall not discriminate against any subcontractor, employee, or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, sexual orientation, or age. Such nondiscrimination includes, but is not limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, or termination. 10 of 13 18.0 Labor Certification By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code that require every employer to be insured against liability for Workers' Compensation or to undertake self-insurance in accordance with the provisions of that Code, and agrees to comply with such provisions before commencing the performance of the Services. 19.0 Prevailing Wage and Payroll Records If this Agreement calls for services that, in whole or in part, constitute °public works" as defined in the California Labor Code, then Consultant shall comply in all respects with all applicable provisions of the California Labor Code, including those set forth in Exhibit B, attached hereto and incorporated by reference herein. 20.0 Entire Agreement This Agreement contains the entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings, or agreements. This Agreement may only be modified by a writing signed by both parties. 21.0 Severability The invalidity in whole or in part of any provisions of this Agreement shall not void or affect the validity of the other provisions of this Agreement. 22.0 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. 23.0 No Third Party Rights No third party shall be deemed to have any rights hereunder against either party as a result of this Agreement. 24.0 Waiver No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. 11 of 13 25.0 Prohibited Interests; Conflict of Interest 25.1. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the Services, or which would conflict in any manner with the performance of the Services. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest, which would conflict in any manner with the performance of the Services. Consultant shall not accept any employment or representation during the term of this Agreement which is or may likely make Consultant "financially interested" (as provided in California Government Code §§ 1090 and 87100) in any decision made by City on any matter in connection with which Consultant has been retained. 25.2. Consultant further warrants and maintains that it has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement. Nor has Consultant paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, gift, percentage, or any other consideration contingent upon the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, at its sole and absolute discretion, to terminate this Agreement without further liability, or to deduct from any sums payable to Consultant hereunder the full amount or value of any such fee, commission, percentage or gift. 25.3. Consultant warrants and maintains that it has no knowledge that any officer or employee of City has any interest, whether contractual, non - contractual, financial, proprietary, or otherwise, in this transaction or in the business of Consultant, and that if any such interest comes to the knowledge of Consultant at any time during the term of this Agreement, Consultant shall immediately make a complete, written disclosure of such interest to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws as described in this subsection 26.0 Attorneys' Fees If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party all of its attorneys' fees and other costs incurred in connection therewith. 27.0 Exhibits 12 of 13 All exhibits referenced in this Agreement are hereby incorporated into the Agreement as if set forth in full herein. In the event of any material discrepancy between the terms of any exhibit so incorporated and the terms of this Agreement, the terms of this Agreement shall control. 28.0 Corporate Authority The person executing this Agreement on behalf of Consultant warrants that he or she is duly authorized to execute this Agreement on behalf of said party and that by his or her execution, the Consultant is formally bound to the provisions of this Agreement. 13 of 13 IN WITNESS WHEREOF, the Parties hereto, through their respective authorized representatives have executed this Agreement as of the date and year first above written. CITY OF SEAL EACH By: er, Director of Public Works CONSULTANT: Nichols Consulting Engineers, CHID, a Nevada corporation Name: Its:�- By: GM r Name: Its: (Please note, two signatures requimd fOr wrpore ons pursuant to Califomie Corporations Code Sect/on 313.) 14 of 13 EXHIBIT A Consultant's Proposal H O a w w H z w =w ami � mZ R cin � Oz W V ; Q a O N O N O� r O N 'E U) a 0 a 4.0N O A u E cn m a� `m T O Z in m c Y c0 vi a� a� UN N C Cl) CM O C C N U O C CU E y r N O U 7 r U -V C N N C O_ in :3r cn N E c,4 YY cn cn cu cu Q � � a� N U a m 0 O N L O m N T N (n d) E w cn cv Y y m SCOPE OF SERVICES AND SCHEDULE Project Understanding & Approach NCE understands that the City of Seal Beach is seeking a consultant to update its Pavement Management Plan (PMP). The City has approximately 41.3 centerline miles of streets, and the City utilizes the PAVERTM software. The last update was completed in June 2018. In the past 17 years, Seal Beach has undertaken an extensive rehabilitation plan for its street network. Many of the worst streets have been rehabilitated and the City's Pavement Condition Index (PCI) has improved from 75 in 2002 to 82 in 2018. However, a PMP is still needed to ensure that the streets are maintained in the most cost-effective way possible. Further, it is required by OCTA to continue to receive Measure M funding as well as in assisting the City to achieve the CTC's reporting requirements as part of the RMRA/SB1 funding. Scope of Services Details of NCE's proposed scope of services and schedule follow on the subsequent pages. Task 1 — Kickoff Meeting NCE will meet with City staff to review and finalize project scope. The technical approach, schedules and administrative items will be discussed. At a minimum, items will include: Scope of work, project schedule, budget and invoicing requirements ev Points of contact ;! List of new streets since last update :' Public safety concerns, requirements and procedures W. Quality Control / Quality Assurance Plan 41 Maintenance history records ! Maintenance budgets ! Other items, as appropriate Prior to this meeting, NCE will prepare a detailed agenda for the City's review and comment. Additional meetings will be held at appropriate milestones. DELIVERABLES: Technical memorandum summarizing meeting Schedule of future meetings Task 2 — Pavement Survey NCE's OCTA -certified pavement inspectors will survey all City maintained streets using the ASTM D6433-11 protocols. Typical examples of distress types are shown on next page. ;!NC'F Page 11 Alligator or Fatigue Cracking Bleeding/Flushing Joint Reflection Cracking Lane/Shoulder Drop Off Longitudinal & Traverse Cracking City of Seal Beach 2019 Pavement Management Plan Update August 7, 2019 Blowup/ Buckling Corner Break Divided Slab Durability (*D") Cracking Faufting Joint Seal Damage Lane/Shoulder Drop Off Linear Cracking (Non - Reinforced Slabs) Linear Cracking (Reinforced Slabs) Patching, Large (> 5.5 SF & Utility Cuts) Patching & Utility Cut Patching Patching, Small (< 5.5 so Polished Aggregate Polished Aggregate _Potholes Railroad Crossing Rutting Shoving Slippage Cracking Swell Raveling Weathering Popouts_ Pumping Punchout Railroad Crossing Scaling Shrinkage Cracks Spalling, Corner Spalling, Joint There are three types of distress surveys that agencies and consultants have performed for pavement management programs, and each has its advantages and disadvantages. Briefly, these are: Walking Surveys — These are performed with one-person crews (for high volume streets like expressways or major arterials, two -person crews may be needed for safety). The major advantage of this survey method is that it is highly accurate, since cracks and all other pavement distresses are measured and recorded. However, walking surveys are more labor-intensive and are thus more expensive than windshield surveys. OCTA recommends this method for the MPAH. Windshield Surveys — These are performed with two -person crews in a vehicle traveling at low speeds (under 15 mph). The major advantage is that 100% of the roadway is surveyed, and it can be accomplished very quickly, safely and inexpensively. However, the disadvantage is that the data collected tends to be of variable quality. In particular, low -severity distresses are typically not visible from a moving vehicle. This results in a higher than expected condition rating of the streets, and consequently, a lower estimate of the backlog and pavement M&R needs. OCTA accepts windshield surveys for local roads. Automated Surveys — These are typically performed with a customized vehicle that is equipped with a video or digital camera and/or laser bars. The major advantage is that they are equipped to perform surveys very quickly and safely. However, post -processing time can offset cost -savings in the field, and the quality of the data can be variable depending on light conditions (e.g., tree -lined streets with contrasts in light and dark) because shadows can mask some distresses. Typically, only the outer travel lanes are surveyed, and for most residential streets, only one lane is surveyed. No parking lanes are included, which eliminates ;INCF Pa g e 12 City of Seal Beach 2019 Pavement Management Plan Update August 7, 2019 distresses such as tree root distortions, edge cracking, oil spots from parked cars etc. The PCI can be either lower or higher than walking surveys, depending on the types of distresses. Finally, these vehicles are expensive to purchase (typically over $100,000 per) and unless the City wishes to be tied to one vendor for future PMS updates, this option is not usually recommended. OCTA recommends walking surveys for MPAH roadways. Walking surveys are what the City has used in the past. By continuing this method, the City is assured that there should be no major differences in the PCI's Therefore, NCE will perform walking pavement condition surveys it standards as per ASTM D6433-11. A minimum of one sample unit per section will be inspected. Approximately one sample unit will be inspected for each 1,000 lineal feet of roadway. Any variation from the established procedures will be to accommodate unique local conditions, e.g., gap -graded texture of rubberized asphalt concrete overlays, chip seals over Portland cement concrete pavements, etc. These conditions typically exhibit unique distresses that may not be reflected in any distress manual, so special exceptions will need to be made. Any areas which are not typical of the entire section will be inspected and recorded as a special sample unit. accordance with the established High severity bleeding Our scope of work and condition surveys do not address issues including, but not limited to traffic, safety and road hazards, geometric issues, road shoulders, sidewalks, curb and gutters, drainage issues or short- term maintenance that should be performed. NCE will be responsible for providing all equipment necessary for performance of this task. Should City personnel wish to observe NCE's crews during the surveys, we will be more than happy to accommodate the City. Individual city staff may also accompany NCE's field crews for up to a half day each — to gain hands-on training at no additional cost to the City. We have found that this is the most effective training method for agency staff, as they become part of the data collection crew, rather than just an observer. Data Entry and PCI Calculations The distress data will be recorded on tablets once the surveys are complete. We will be responsible for providing all equipment necessary for performance of this task. The data will receive random quality control checks to ensure that it is complete and accurate. Quality Control Quality management practices for pavement management suggest that a one-time survey of the final data are typically inadequate and involve a high risk of failure. Quality Control (QC) checks are critical on a project such as this. As part of NCE's goal to provide a superior quality product for our clients, we incorporate a QC component into all of our projects. For this project, we have proposed the inclusion of a QC Manager, Mr. James Signore, as noted in our Project Organization chart. Mr. Signore will have the following project responsibilities: Calibration of all data collection activities Review of field activities, including spot checks on the field crews PAVEMENT MANAGEMENT SYSTEM QC PIAN 2016 SAXIA 1t0r1C i' .'!NCE Page 13 City of Seal Beach 2019 Pavement Management Plan Update August 7, 2019 ' Review field procedures and making changes as needed :! Comoare the field data collected with on-site conditions ! Review of all data entry functions, including random spot checks 121 Review of reports generated and analyses performed to ensure a quality product In addition, NCE's technicians are qualified for OCTA distress collection and have been certified by MTC. The qualification and certification process assure the City of Seal Beach that NCE's technicians have the skills needed to assess the distresses correctly. DELIVERABLES: QC/QA Plan PCI Report (Excel format) Task 3 — Update Maintenance and Rehabilitation Strategies and History The development of the M&R Decision Tree is a critical step in any PMS implementation as it has a direct and significant impact on the final work plan that is developed, as well as the budgeting consequences. Therefore, NCE will meet with City staff to provide a brief overview of different treatments available, and their applicability to Seal Beach. This will include: Pavement preservation activities, e.g., chip, scrub, slurry and cape seals (conventional as well as with rubber), microsurfacing, crack filling and sealing, ultrathin bonded overlays. Rehabilitation, e.g., cold in-place recycling, full depth reclamation, foam asphalt, warm mix technology, asphalt rubber overlays This will include the recommendation of appropriate treatments such as seals or overlays, and the determination of treatment unit costs. The advantages and disadvantages of each will be discussed, together with any local experiences. NCE's experience in pavement engineering and design, as well as local conditions, allows our staff to be able to provide the City with solutions that are innovative, practical and constructible. Finally, NCE will review and update any historical treatments that have occurred since the last update. Populating the City's PMS database is extremely useful for determining future treatments and predicting the performance of a network (it is also an OCTA requirement). This historical data should include overlays, reconstructions and surface seals. These records must include the following information: t Street Name ! Branch and Section ID's 1. '. Beginning and ending limits of work Type of treatment Date of treatment DELIVERABLES: Updated maintenance decision tree with unit costs and treatment strategies M&R history report ;!NCE Page 14 City of Seal Beach 2019 Pavement Management Plan Update August 7, 2019 Task 4 - Budgetary Analyses and Reports NCE will perform a Budget Needs or Unconstrained Budget analysis using a seven-year analysis period (or more to identify long-term trends). This task will identify M&R requirements for each road section and determine the total maintenance and rehabilitation requirements over the entire analysis period. The costs are then summed for the entire period. This forms the basis for performing Budget Scenario evaluations, which optimize the street sections for repair under constrained budgets. In simplistic terms, the Budget Needs analysis answers the questions: "If I have unlimited funding for street maintenance and repair, which streets should I fix? When should I fix them? What treatments should I apply? How much will it cost?" The Budget Scenarios evaluation prioritizes sections for repair under constrained, realistic, budgetary assumptions. Multiple funding scenarios may be performed to answer "what -if' questions (the real "meat" of any PMS). NCE will perform budget scenarios based on the input from the City during the meeting that discussed the pavement strategies, unit costs and annual budget. Examples of scenarios include: .! Existing funding levels '. Funding levels required to maintain the current network PCI .! Funding levels required to increase the network PCI Simply put, this module answers the question: "If I only have limited funds for street maintenance and repair, which streets have the highest priority for repairs, when should I perform the repairs, and how much will it cost?" NCE will then prepare a final report that summarizes the overall condition of the City's pavement network, the maintenance & rehabilitation strategies used by the City, the results of budgetary analyses, different budget scenarios and recommendations on the recommended scenario with selected road sections for maintenance and rehabilitation. In addition to the City's requirements, this reaort will meet OCTA's Measure M2 reauirements, as outlined by the OCTA PMP Template of April 2018. Additionally, NCE will provide the following information in the report for the City's reference: Current pavement conditions in tabular format for all street classes and surface types; An analysis allowing the City to measure and understand the impact of deferred maintenance (backlog) on the overall network condition. Current funding sources as well as any addition sources the City may wish to investigate. Upon receipt of the City's comments on the draft report, NCE will make appropriate revisions and corrections and will submit the Final Report to the City. Finally, NCE will prepare and present the results of the update for City staff and/or City Council at no cost. This may be a short (15 to 20 minute) informational item, or could be a longer (1-2 hours) educational/advocacy workshop, depending on the City's needs. NCE has recently completed similar presentations to City Councils for Carson and West Covina. ;!NCE P a g e 15 City of Seal Beach 2019 Pavement Management Plan Update August 7, 2019 NCE's value to the City is the information that we can offer from other cities, and the results of tight budgetary constraints as well as a statewide perspective from NCE's findings from the California Statewide Local Streets and Roads Needs Assessment that included all 540 cities and counties. DELIVERABLES: S! Draft report (electronic copy) Final report (10 hard copies) '. OCTA PMP Completed Template for submission PowerPoint presentation Schedule NCE proposes the following schedule upon notice to proceed. Assumptions: Task 2 includes QC. Task 2 does not include weather delays. Task 4 includes 2 weeks for City to review draft report. Task 4 Includes Council presentation. Tasks 1, 3 & 4 include 1 meeting each. *all-NCF Page 16 EXHIBIT B TERMS FOR COMPLIANCE WITH CALIFORNIA LABOR LAW REQUIREMENTS 1. This Agreement calls for services that, in whole or in part, constitute "public works' as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code ("Chapter 10). Further, Consultant acknowledges that this Agreement is subject to (a) Chapter 1 and (b) the rules and regulations established by the Department of Industrial Relations ("DIR") implementing such statutes. Therefore, as to those Services that are "public works', Consultant shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein. 2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by Califomia law, does not alter the meaning or scope of Section 1 above. 3. Consultant shall be registered with the Department of Industrial Relations in accordance with California Labor Code Section 1725.5, and has provided proof of registration to City prior to the Effective Date of this Agreement. Consultant shall not perform work with any subcontractor that is not registered with DIR pursuant to Section 1725.5. Consultant and subcontractors shall maintain their registration with the DIR in effect throughout the duration of this Agreement. If Consultant or any subcontractor ceases to be registered with DIR at any time during the duration of the project, Consultant shall immediately notify City. 4. Pursuant to Labor Code Section 1771.4, Consultant's Services are subject to compliance monitoring and enforcement by DIR. Consultant shall post job site notices, as prescribed by DIR regulations. 5. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Consultant acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Consultant shall post such rates at each job site covered by this Agreement. 6. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. Consultant shall, as a penalty to City, forfeit $200.00 for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Consultant or by any subcontractor. 7. Consultant shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Consultant and each subcontractor to: keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776; certify and make such payroll records available for inspection as provided by Section 1776; and inform City of the location of the records. 8. Consultant shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Code of Regulations, Title 8, Section 200 et seq. concerning the employment of apprentices on public works projects. Consultant shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Consultant shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within 60 days after concluding work pursuant to this Agreement, Consultant and each of its subcontractors shall submit to City a verified statement of the journeyman and apprentice hours performed under this Agreement. 9. Consultant shall not perform work with any Subcontractor that has been debarred or suspended pursuant to California Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. Consultant and subcontractors shall not be debarred or suspended throughout the duration of this Contract pursuant to Labor Code Section 1777.1 or any other federal or state law providing for the debarment of contractors from public works. If Consultant or any subcontractor becomes debarred or suspended during the duration of the project, Consultant shall immediately notify City. 10. Consultant acknowledges that eight hours labor constitutes a legal day's work. Consultant shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. Consultant shall, as a penalty to City, forfeit $25.00 for each worker employed in the performance of this Agreement by Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code. Pursuant to Labor Code Section 1815, work performed by employees of Consultant in excess of eight hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay. 11. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Consultant hereby certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract! 12. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor's compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Consultant shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor's compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages. Consultant shall diligently take corrective action to halt or rectify any failure. 13. To the maximum extent permitted by law, Consultant shall indemnify, hold harmless and defend (at Consultant's expense with counsel reasonably acceptable to City) City, its officials, officers, employees, agents and independent contractors serving in the role of City officials, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including Consultant, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all consequential damages, attomeys' fees, and other related costs and expenses. All duties of Consultant under this Section shall survive the termination of the Agreement. NICHCON-02 DIMEOL .acoRO' CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YYYY) `� 1 11/6/2019 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(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endomement(s). PRODUCER License 8 OE67768 CONTACT Erica Wilson NAME: IDA Insurance Services PHONE FAX 4370 La Jolla Village Drive (A/C, No, Ext): (858) 754-0063 50233 (AIC, No):(619) 574-0288 Suite 600 ADDRESS: Erica.Wilson@ioausa.com San Diego, CA 92122 INSURERS) AFFORDING COVERAGE NAIC # INSURER A:RLI Insurance Company 13056 INSURED INSURER B: Crum & Forster Specialty Insurance Company 44520 Nichols Consulting Engineers, CHTD INSURER C: 1885 S. Arlington Ave., *111 INSURER D: Reno, NV 89509 INSURER E INSURER F COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. AUTHORIZED REPRESENTATIVE Cityof SealBeach 211 Eighth Street Seal Beach, CA INSR TYPE OF INSURANCE ADDL SUBR. POLICY NUMBER POLICY EFF POLICY EXP LTR wl IMM LIMITS A X COMMERCIAL GENERAL LIABILITY _EACH OCCURRENCE $ 1,000,000 CLAIMS -MADE X OCCURPSB0003222 5/17/2019 5/17/2020 X DAMAGE TO RENTED PREMISES LEa pccurrence�_ - -$- --_- 1,000,000 X Cont L'lab/Sev of Int 10'000 MED EXP (Any one person) $ 1'000'000 PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2'00000 POLICY X J`PCT LOC PRODUCTS - COMP/OP AGG $ 2,000,000 Deductible 0 OTHER: $ A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident)- _b 1,000,000 __. - X ANY AUTO PSA0001184 5/17/2019 5/17/2020 BODILY INJURY (Per person) $ OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ E AUTOS ONLY __--_ AUTO ONLDY PROPERTY P r amide t) DA AGE X Comp.: $500 X Coll.: $500 A UMBRELLA UAB X _ OCCUR. EACH OCCURRENCE $ 5'000'000 X EXCESS LIAB CLAIMS -MADE PSE0003030 5/17/2019 5/17/2020 AGGREGATE $ 5'000'000 DED X RETENTION $ 0 $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY X PER OTH- - STATUTE - ER YNN. PSW0001955 5/17/2019 5/17/2020 1,000,000 ANY PROPRIETOR/PARTNER/EXECUTIVE FFICER/M EMBER EXCLUDEXCLUDED? N / A E.L. EACH ACCIDENT $ ( andatory in NH) 1'000'000 E_ .L. DISEASE - EA EMPLOYEE- $ It es, describe under 1,000,000 DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ B Prof Liab/Clms Made PKC108625 5/17/2019 5/17/2020 Per Claim 2,000,000 B Ded.: $10k Per Claim PKC108625 5/17/2019 5/17/2020 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Re: Public Works 8: Community Development City of Seal Beach is Additional Insured with respect to General Liability per the attached endorsements as required by written contract. 30 Days Notice of Cancellation with 10 Days Notice for Non -Payment of Premium in accordance with the policy provisions. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Cityof SealBeach 211 Eighth Street Seal Beach, CA ACORD 25 (2016/03) ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Named Insured: Nichols Consulting Engineers, CHTD Policy Number: PS80003222 RLI Insurance Company THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. RLIPack® FOR DESIGN PROFESSIONALS BLANKET ADDITIONAL INSURED ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM - SECTION II — LIABILITY 1. C. WHO IS AN INSURED is amended to include as an additional insured any person or organization that you agree in a contract or agreement requiring insurance to include as an additional insured on this policy, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused in whole or in part by you or those acting on your behalf: a. In the performance of your ongoing operations; b. In connection with premises owned by or rented to you; or c. In connection with "your work" and included within the "product -completed operations hazard". 2. The insurance provided to the additional insured by this endorsement is limited as follows. a. This insurance does not apply on any basis to any person or organization for which coverage as an additional insured specifically is added by another endorsement to this policy. b. This insurance does not apply to the rendering of or failure to render any "professional services". c. This endorsement does not increase any of the limits of insurance stated in D. Liability And Medical Expenses Limits of Insurance. 3. The following is added to SECTION III H.2. Other Insurance — COMMON POLICY CONDITIONS (BUT APPLICABLE ONLY TO SECTION II — LIABILITY) However, if you specifically agree in a contract or agreement that the insurance provided to an additional insured under this policy must apply on a primary basis, or a primary and non-contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with that other insurance, provided that: a. The "bodily injury" or "property damage" for which coverage is sought occurs after you have entered into that contract or agreement; or b. The "personal and advertising injury" for which coverage is sought arises out of an offense committed after you have entered into that contract or agreement 4. The following is added to SECTION III K. 2. Transfer of Rights of Recovery Against Others to Us — COMMON POLICY CONDITIONS (BUT APPLICABLE TO ONLY TO SECTION it — LIABILITY) We waive any rights of recovery we may have against any person or organization because of payments we make for "bodily injury", "property damage" or "personal and advertising injury" arising out of 'Your work" performed by you, or on your behalf, under a contract or agreement with that person or organization. We waive these rights only where you have agreed to do so as part of a contract or agreement with such person or organization entered into by you before the "bodily injury" or "property damage" occurs, or the "personal and advertising injury" offense is committed. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. PPB 304 06 10 Page 1 of 1