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HomeMy WebLinkAboutEwing Construction Services 2005-10-12a4 r - c� I t`J L�� i CITY OF UKIAH STANDARD CONSULTANT SERVICES AGREEMENT AND GENERAL PROVISIONS This Agreement, made and entered into this � ay of October, 2005 (Effective Date"), by and between the CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and Ewing Construction Services, a Sole Proprietorship, hereinafter referred to as "Consultant". RECITALS This Agreement is predicated on the following facts: a. City requires construction cost review services related to the Wastewater Treatment Plant Improvement Project. b. Consultant represents and warrants to City that he has all licenses, permits, qualifications, and approvals of whatsoever nature, which are legally required for Consultant to practice his profession. Consultant represents and warrants to City that Consultant shall, at his sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals which are legally required for Consultant to practice his profession. The consultant must possess a valid City of Ukiah Business License prior to beginning work. C. City and Consultant agree upon the SCOPE OF SERVICES describing work to be performed by the Consultant and project deliverables to be delivered to the City and the Work Schedule setting forth the completion dates for the various services to be provided pursuant to this Agreement. d. Consultant has disclosed to City that Consultant has previously performed consulting services for both Kiewit Pacific Co. and Slayden Construction Inc.. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The services to be rendered under this Agreement pertain to construction cost review services for the Wastewater Treatment Plant Improvement Project. 2.0 SCOPE OF SERVICES 2.1 As set forth in the attachment "Scope of Services, City of Ukiah, Wastewater Treatment Plant Improvement Project, Cost Reduction Review", dated 9/21/05. 3.0 CONDUCT OF WORK 1 3.1 Time of Completion. Consultant shall commence performance of services as required by the "SCOPE OF SERVICES" upon receipt of a Notice to Proceed from City and shall complete such services in accordance with the time requirements set forth in the "SCOPE OF SERVICES". Consultant shall complete the work to the City's reasonable satisfaction, even if contract disputes arise or Consultant contends it is entitled to further compensation. Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. In the case of any such delay, the time of completion shall be extended accordingly. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. For the performance of the professional and technical services of this Agreement, Consultant shall be compensated at the fixed not to exceed fee of $38,366.25. The Consultant is obligated to complete all tasks in their entirety at the compensation. 4.2 Changes. Should changes in compensation be required because of changes to the "SCOPE OF SERVICES" of this Agreement, the parties shall agree in writing to any changes in compensation. Changes to the "SCOPE OF SERVICES" means different activities than those described and not additional time to complete those activities than the parties anticipate on the date they entered this Agreement. 4.3 Sub -contractor Payment. City shall approve the use of sub -consultants or other services to perform a portion of the work of this Agreement prior to commencement of work; the cost of subconsultants is included within the fixed fee identified in Section 4.1. 4.4 Terms of Payment. Payment to Consultant for services rendered in accordance with this contract shall be based upon submission of monthly invoices for the work satisfactorily performed prior to the date of invoice less any amount already paid to Consultant, which amounts shall be due and payable upon receipt by City. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made. 5.0 ASSURANCES OF CONSULTANT 5.1 Independent Contractor. Consultant is an independent contractor and is solely responsible for its acts or omissions. Consultant (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. City shall have the right to control Consultant only insofar as the results of Consultant's service rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Consultant accomplishes services rendered pursuant to this Agreement. 5.2 Conflict of Interest. Consultant understands that its professional responsibility is solely to City. Consultant has no interest and will not acquire any direct or indirect interest that would conflict withits performance of the Agreement. Consultant shall not in the performance of this Agreement employ a person having such an interest. 5.3 Personnel. Consultant shall assign only competent personnel to perform services pursuant to this Agreement. Any attempted or purported assignment of any right or obligation pursuant to this Agreement shall be void and of no effect. City shall designate a City representative and 2 Consultant shall designate a Consultant representative. The City representative and the Consultant representative shall be the primary contact person for each party regarding the performance of the agreement. City representative shall cooperate with Consultant and consultant representative shall cooperate with the City in all matters regarding this agreement and in such manner as will result in the performance of the work in a timely and expeditious fashion. Consultant shall employ no City official or employee in the work performed pursuant to this Agreement. No office or employee of Agency shall have any financial interest in this Agreement in violation of California Government Code Sections 1090 and following; nor shall City violate any provisions of its Conflict of Interest Code adopted pursuant to the provisions of California Government Code Section 87300 and following. 5.4. Standard of Performance. Consultant shall perform all services required pursuant to this Agreement in the manner and according to the standards observed by a competent practitioner of the profession in which Consultant is engaged in the geographical area in which Consultant practices his profession. All instruments of service of whatsoever nature which consultant delivers to City pursuant to this Agreement shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of quality normally observed by a person practicing in Consultant's profession. 5.5 Unique, Proprietary or Innovative Designs or Products. Unique, proprietary or innovative designs or products must be approved of by City in advance of specification or use in design by Consultant. A full, written report on performance history (i.e., track record) of product, design strengths and weaknesses or limitations, and financial strength of manufacturer making product must be submitted by Consultant to City for review and approval. 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting Consultant's obligations arising under Paragraph 6.2 Consultant shall maintain for the duration of this Agreement insurance as evidenced by the insurance certificates attached as Exhibit A. Consultant is a sole -proprietor and does not have any employees. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto,Consultant shall indemnify, defend and hold harmless City officers, agents and employees from andagainst any and all claims, demands, liability, costs and expenses, including court costs and counselfees, arising out of the injury to or death of any person or loss of or physical damage to any property resulting from any negligent or willfully wrongful act or omission committed by Consultant or it'sofficers, agents or employees while performing services under this Agreement. Consultant's liability for professional negligence shall be limited to $1,000,000. As to events, which occur during Consultant's performance of this Agreement, City shall hold Consultant harmless from and defend Consultant against all claims, liability, damage, or loss arising out of any injury or death of any person or damage to or destruction of property attributable to the negligent or willfully wrongful act or omission of City or its officers and 3 employees, where the injury, death or damage is caused by the sole and active negligence or willful misconduct of City or City's employees. City agrees to indemnify, defend and hold harmless Consultant, its sub -consultants, and their directors, officers, employees, agents, successors, and assigns (collectively, "Consultant") from and against any and all demands, claims, suits, liabilities, losses, damages, fees, encumbrances, liens, penalties, or expenses of any kind (collectively "claims") by the City, the second low bidder, the low bidder or any of their Sub -bidders on the City of Ukiah Wastewater Treatment Plant Improvement Project- April 2005, whose bids were in effect on the Effective Date, arising out of the City's decision to award the bid and resulting from the performance by Consultant of the services contemplated under this Agreement. City shall be solely responsible for, and shall indemnify and hold harmless Consultant, its sub consultants, and their directors, officers, employees, agents, successors and assigns from and againstany and all demands, claims, suits, liabilities, losses, damages, fines, encumbrances, liens, penalties or expenses ("Claims") for bodily injury, property damage, damages to the environment or natural resources, lost use, income, or profits, foreseeable and unforeseeable consequential damages, the costs of any required or necessary repair, cleanup or detoxification of any property, the preparation and implementation of any closure, remedial or other required plans, and all reasonable costs and expenses incurred by Consultant in connection with the above, including, without limitation, reasonable attorneys' fees: (1) arising out of the services performed under this Agreement; and (2) involving the transportation, treatment, storage, release, or threatened release of Hazardous Material, or any Claim made under any Hazardous Materials Laws. This indemnification shall not apply to claims based on the negligent or willfully wrongful act or omission of Consultant, or its officers, agents, employees, successors or assigns; however, City agrees that it will retain an attorney acceptable to Consultant and pay all legal fees to defend Consultant against any legal action in connection with hazardous material as defined herein. As used herein, the term "Hazardous Material" means any pollutant, contaminant, hazardous waste, toxic substance or related material, including, without limitation, any substance regulated under the Hazardous Materials Laws. As used herein, the term "Hazardous Materials Laws" includes any statute, regulation, order, permit or government requirement, now or hereafter in effect, relating to environmental conditions, industrial hygiene, or Hazardous Materials, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980. 7.0 CONTRACT PROVISIONS 7.1 Ownership of Work. All documents furnished to Consultant by City and all reports and supportive data prepared by Consultant under this Agreement are City's property and shall be given to City at the completion of Consultant's services at no additional cost to City. Deliverables are identified in the "SCOPE OF SERVICES". Documents, including drawings and specifications, prepared by Consultant under this Agreement are City's property, including ownership of any copyrights on project plans, drawings, specifications, and reports. Any use of completed documents for other projects and/or any use of uncompleted documents without specific written authorization from Consultant will be at City's sole risk and without liability or 4 r legal exposure to Consultant and City shall indemnify and hold Consultant harmless from all claims, damages, and losses and expenses, including attorney's fees, arising out of or resulting there from. 7.2 Final Approval. City and Consultant agree that until final approval by City, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without the prior written consent of both parties. 7.3 Governing Law. Consultant shall comply with the applicable laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. California law shall govern the interpretation and enforcement of this Agreement and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.4 Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from governmental entity, Consultant shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program. 7.5 Breach of Contract. If Consultant materially breaches the terms of this Agreement, the City shall have the following alternative remedies: (a) Immediately terminate the Agreement with Consultant; (b) Retain the plans, specifications, drawings, reports and other design documents prepared by Consultant; (c) Copyrights on plans, specifications, drawings, and reports and other design documents owned by the Consultant shall become the property of City; (d) Complete the unfinished work, under this agreement, with a different consultant, or; (e) Charge Consultant with the difference between the cost of completion of the unfinished work pursuant to this agreement and the amount that would otherwise be due consultant had Consultant completed the work. 7.6 Entire Agreement. This Agreement and executed Amendments set forth the entire understanding between the parties and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties. 7.7 Severability. If a court of competent jurisdiction holds any term of this Agreement invalid, the remainder of this Agreement shall remain in effect. 7.8 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 7.9 Assigningnt. Consultant's services are considered unique and personal. Consultant shall not assign, transfer, or sub -contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 5 7.10 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.11 Litigation. In the event a suit or action is instituted to enforce any of the terms and conditions of this Agreement, the prevailing party shall collect, in addition to the costs and disbursements allowed by statutes, such sums as the court may adjudge reasonable as attorney's fees in such suit or action in both trial and appellate courts. 7.12 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay Consultant for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which Consultant was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the non -breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to Consultant. City shall pay the Consultant only for services performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, Consultant shall provide to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Consultant under this Agreement. Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, subject to off -set for any direct or consequential damages City may incur as a result of Consultant's breach of contract. 7.13 Duplicate Originals. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. When so signed, each such document shall be admissible in administrative or judicial proceedings as proof of the terms of the Agreement between the parties. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally delivered or deposited in the mail (certified or registered) addressed to the parties as follows: CITY OF UKIAH DEPARTMENT OF PUBLIC UTILITIES 300 SEMINARY AVENUE UKIAH, CALIFORNIA 95482 in EWING CONSTRUCTION SERVICES 417 Mace Blvd., Suite J-336 Davis, CA. 95616 9.0 Consultant Entitled to Relv. Consultant shall be entitled to rely upon the accuracy of data and information provided by City or others without independent review or evaluation. 10.0 SIGNATURES IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written: CITY OF UKIAH B CANDACE HORSLEY CITY MANAGER EWING CONSTRUCTION SERVICES me (� of C ulting Firm) BY: 101540S DAVID B. EWING OWNER ATTEST 60 15 - MARIE ULVILA Date DEPT ---;T-* CITY CLERK fIl Date SCOPE OF SERVICES City of Ukiah Wastewater Treatment Plant Improvement Project Cost Reduction Review September 21, 2005 Phase 1: Construction Contract Pre -Award Tasks TASK 1 - Review of Contract Documents with emphasis on developing ideas to reduce the cost of the project without adversely impacting the necessary project and process elements. This review will include a review of the current construction schedule and milestones. TASK 2 - David Ewing will attend City Board meeting on or about October 17, 2005 and present report. PHASE 1 TASK 2 DELIVERABLES - ECS will deliver a written report via email to the City no later than October 11, 2005. Phase 2: Construction Contract Post -Award Tasks TASK 1 - ECS will meet with the Contractor individually at their office to further develop cost reduction ideas PHASE 2 TASK 1 DELIVERABLES - Provide Contractor with a timeline and outline for a cost reduction summit meeting at City offices. TASK 2 - ECS will meet with the Brown &Caldwell (B&C) design team individually at their office in Walnut Creek to further develop cost reduction ideas PHASE 2 TASK 2 DELIVERABLES - Provide B&C with a timeline and outline for a cost reduction summit meeting at City offices. TASK 3 - ECS, Dryden and Frisch will study initial cost reduction ideas provided by Contractor, B&C and the City in preparing for the cost reduction meeting at City offices. TASK 4 - ECS, along with its subconsultants, Frank Dryden and Tom Frisch, will facilitate an all -day cost reduction meeting to held at the City offices no later than 2 weeks following the contract award date. Invitees will include appropriate City staff and elected officials, B&C Design team, Harris & Associates, Contractor, appropriate subcontractors and appropriate major suppliers. PHASE 2 TASK 4 DELIVERABLES 1. ECS will prepare an agenda for this meeting. (Note: City will provide a person to take meeting minutes and distribute following to meeting attendees.) 2. Following this meeting, ECS will prepare an outline of cost reduction ideas that warrant further review and consideration. (Note: This will be the last deliverable to the City and it is expected that City staff, Contractor, B&C and Harris will continue forward with this process which will conclude with the appropriate deductive change orders to the Contract.) ECS and its subconsultants will not accept any design responsibility for ideas generated during this cost reduction process. All cost reduction ideas must be thoroughly reviewed by City Staff, City Design Consultants, City's Construction Manager and City Attorney as may be required before a change is made to the Construction Contract. Nothing in any ECS Deliverable to the City as described above and nothing in any ECS communication with the City should be construed as a promise or guarantee of the outcome of a specific City project or of ECS services. ECS can make no such promises or guarantees. ECS comments about the outcome of a City project or resulting from our services are expressions of opinion only. These opinions are limited by ECS's knowledge of the facts and are based upon our knowledge of the industry at the time that they are made. The City will provide the following to ECS as part of this review process: 1. Three copies of Contract Document and all addenda. 2. Three CD copies of Contract Documents. 3. One copy of complete bid form submitted by apparent low -bidder. 4. One copy of any relevant post bid communications pertaining to project design and cost. 5. All video equipment and screen required for a PowerPoint presentation at City Board meeting. � STA�TY fA�IM �\TI INSURANC® CERTIFICATE OF INSURANCE SUCH INSURANCE AS RESPECTS THE INTEREST OF THE CERTIFICATE HOLDER NAMED BELOW WILL NOT BE CANCELED OR OTHERWISE TERMINATED WITHOUT GIVING 10 DAYS PRIOR WRITTEN NOTICE TO THE CERTIFICATE HOLDER, BUT IN NO EVENT SHALL THIS CERTIFICATE BE VALID MORE THAN 30 DAYS FROM THE DATE WRITTEN. THIS CERTIFICATE OF INSURANCE DOES NOT CHANGE THE COVERAGE PROVIDED BY ANY POLICY DESCRIBED BELOW. This certifies that: ® STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY of Bloomington, Illinois ❑ STATE FARM FIRE AND CASUALTY COMPANY of Bloomington, Illinois ❑ STATE FARM COUNTY MUTUAL INSURANCE COMPANY OF TEXAS of Dallas, Texas, or ❑ STATE FARM INDEMNITY COMPANY of Bloomington, Illinois has coverage in force for the following Named Insured as shown below: NAMED INSURED: EWING, DAVID B ADDRESS OF NAMED INSURED: 27301 E EL MACERO DR, EL MACERO, CA 95618-1004 POLICY NUMBER V88 5870 B19 551 EFFECTIVE DATE OF POLICY 8/19/05-2/18/06 DESCRIPTION OF 2004 LEXUS SPORT VEHICLE (Including VIN) JTJBT20X440029061 LIABILITY COVERAGE ® YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO LIMITS OF LIABILITY a. Bodily Injury Each Person 1000000 Each Accident 1000000 b. Property Damage Each Accident 1000000 c. Bodily Injury & Property Damage Single Limit Each Accident PHYSICAL DAMAGE COVERAGES ® YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO a. Comprehensive $ 1000 Deductible $ Deductible $ Deductible $ Deductible ® YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO ❑ YES ❑ NO b. Collision $ 1000 Deductible $ Deductible $ Deductible $ Deductible EMPLOYERS NON -OWNED CAR LIABILITY COVERAGE ❑YES ® NO EJ YES [:1 NO [:1 YES ❑ NO [:1 YES ❑ NO HIRED CAR LIABILITY ❑ YES ® NO E]YES [—I NO ❑ YES NO YES [:1[:1NO NO COVERAGE FLEET - COVERAGE FOR ALL OWNED AND LICENSED YES ® NO ❑ YES ❑ NO ❑YES ❑ NO ❑YES NO❑ ❑ MOTOR VEHICLES LSAS 2965 09/22/05 Signature of Authorized Representative Title Agent's Code Number Date Name and Address of Certificate Holder Name and Address of Agent ADDITIONAL INSURED CITY OF UKIAH 300 SEMINARY AVE UKIAH, CA 9582 C'YEPiRP' _. t. ?G -rise# 00190 F " A24 "F"CA 4 e RkC`t'��li�a9 VA 9515 Off: (530) 759-9204 (530) 759-9288 INTERNAL STATE FARM USE ONLY: ❑ Request permanent Certificate of Insurance for liability coverage. 122429.2 Rev. 06-10-2004 171 Request Certificate Holder to be added as an Additional Insured. UP, CERTIFICATE OF LIABILITY INSURANCEAT(M i o0 PRODUCER (530) 756-5561 FAX (530)7S6-4641 Purves & Associates Ins. Agency/Networked Ins. Lic # OD35042 500 4th Street Davis, CA 95616 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Ewing Construction Services DBA: David Ewing 417 Mace Blvd, Suite J-336 Davis, CA 95616-6053 INSURERA: CNA INSURER B: INSURER C: INSURER D: INSURER E r&Tra111FIy:_y1Te =� 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DD' INqR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATIONLTR LIMITS GENERAL LIABILITY 2072010305 06/04/2005 06/04/2006 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 100,000 CLAIMS MADE M OCCUR MED EXP (Any one person) $ 10,000 A X PERSONAL & ADV INJURY $ Excluded GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY PROECT LOC J AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea accident) $ ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) $ HIRED AUTOS BODILY INJURY $ NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ AGGREGATE $ OCCUR FICLAIMS MADE $ DEDUCTIBLE $ RETENTION $ WORKERS COMPENSATION AND OR STIMIT OTH- EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT 1 $ OTHER DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS e: Contract Consultant Services, City of Ukiah Certificate Holder is Additional Insured per Endorsement G 123127-B attached 0 day notice of cancellation applies for non-payment of premium City of Ukiah Department of Public Utilities 300 Seminary Avenue Ukiah, CA 95482 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHAL MPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AC�1�'S OR REPR aE TIVES. AUTHORIZED REPRESENTATIVE Purves ACORD 25 (2001/08) FAX: (530) 756-7657 ©ACORD CORPORATION 1988 CNA G -123127-B (Ed. 12/02) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C., OF THIS ENDORSEMENT FOR THESE DUTIES. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED ENDORSEMENT WITH PRODUCTS -COMPLETED OPERATIONS COVERAGE BLANKET WAIVER OF SUBROGATION Architects, Engineers and Surveyors This endorsement modifies insurance provided under the following: BUSINESS ACCOUNT PACKAGE POLICY — BUSINESS LIABILITY COVERAGE FORM BUSINESS ACCOUNT PACKAGE POLICY — COMMON POLICY CONDITIONS A. WHO IS AN INSURED (Section C) of the Business Liability Coverage Form is amended to include as an insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement; but the written contract or written agreement must be: 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the 'bodily injury,' 'property damage,' 'personal injury" or 'advertising injury.' S. The insurance provided to the additional insured is limited as follows: 1. That person or organization is an additional insured solely for liability due to your negligence specifically resulting from your work' for the additional insured which is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured. 2. The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These Limits of Insurance are inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. 3. The coverage provided to the additional insured within this endorsement and section titled DEFINITIONS — "Insured Contract" (Section F.8) within the Business Liability Coverage Form, does not apply to 'bodily injury' or 'property damage' arising out of the 'products -completed operations hazard' unless required by the written contract or written agreement. 4. The insurance provided to the additional insured does not apply to 'bodily injury,' 'property G -123127-B (Ed. 12/02) damage,' 'personal injury' or 'advertising injury' arising out of an architect's, engineer's, or surveyor's rendering of or failure to render any professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications by any architect, engineer or surveyor performing services on a project of which you serve as construction manager; or b. Inspection, supervision, quality control, engineering or architectural services done by you on a project of which you serve as construction manager. 5. This insurance does not apply to 'bodily injury,' 'property damage,' 'personal injury' or 'advertising injury' arising out of: a. The construction or demolition work while you are acting as a construction or demolition contractor. This exclusion does not apply to work done for or by you at your premises. C. GENERAL CONDITIONS — Duties In The Event of Occurrence, Offense, Claim or SuR (Section E.2) of the Business Liability Coverage Form is amended to add the following: An additional insured under this endorsement will as soon as practicable: 1. Give written notice of an occurrence or an offense to us which may result in a claim or 'suit' under this insurance; 2. Tender the defense and indemnity of any claim or 'suit' to us for a loss we cover under this Coverage Part; Page 1 of 2 3. Tender the defense and indemnity of any claim or 'suit' to any other insurer which also has insurance for a loss we cover under this Coverage Part; and 4. Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part. We have no duty to defend or indemnify an additional insured under this endorsement until we receive written notice of a claim or 'suit' from the additional insured. D. OTHER INSURANCE (Section H. 2 do 3) of the Common Policy Conditions are deleted and replaced with the following: 2. This insurance is excess over any other insurance naming the additional insured as an insured whether primary, excess, contingent or on any other basis unless a written contract or written agreement specifically requires that this insurance be either primary or primary and noncontributing to the additional insured's own coverage. This insurance is excess over any other insurance to which the additional insured has been added as an additional insured by endorsement. 3. When this insurance is excess, we will have no duty under Coverages A or B to defend the additional insured against any 'suit' if any other insurer has a duty to defend the additional insured against that 'suit' If no other insurer defends, we will undertake to do so, but we will be entitled to G -123127-B (Ed. 12/02) G -123127-B (Ed. 12/02) the additional insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (a) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and self-insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. E. TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US (Section J.2) of the Common Policy Conditions is deleted and replaced with the following: 2. We waive any right of recovery we may have against any person or organization against whom you have agreed to waive such right of recovery in a written contract or agreement because of payments we make for injury or damage arising out of your ongoing operations or 'your work' done under a contract with that person or organization and included within the 'products - completed operations hazard.' Page 2 of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) l 11V l...V1V ACOR INSURANCE BINDER DATE M 05/23/05 THIS BINDER IS A TEMPORARY INSURANCE CONTRACT, SUBJECT TO THE CONDITIONS SHOWN ON THE REVERSE SIDE OF THIS FORM. PRODUCER Pq PHONE NNc EM : 650-369-5900 Professional Practice PANY Specialty Insurance C ;;; BINDER # US051094801 Insurance Brokers, Inc. 10 California Street Redwood City, CA 94063-1513 EFFECTIVE DATE TIME EXPIRATION DATE TIME 06/04/05 12:01 X AM PM 09/04/05 X7112:01 AM NOON THIS BINDER IS ISSUED TO EXTEND COVERAGE IN THE ABOVE NAMED COMPANY PER EXPIRING POLICY #: CODE: W SUB CODE: AGENCY '1710 7 0 CUSTOMER ID: DESCRIPTION OF OPERATIONS/VEHICLES/PROPERTY (Including Location) Loc#1: 417 Mace Boulevard, Suite INSURED Ewing Construction Services 417 Mace Boulevard, Suite J-336 J-336, Davis, CA 95616 Davis, CA 95616 COMBINED SINGLE LIMIT $ TYPE OF INSURANCE COVERAGE/FORMS DEDUCTIBLE COINS % AMOUNT PROPERTY CAUSES OF LOSS BASIC 1:1 BROAD FISPEC GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE 1:1 OCCUR RETRO DATE FOR CLAIMS MADE: EACH OCCURRENCE $ FIRE DAMAGE (Any one fire) $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ MEDICAL PAYMENTS $ PERSONAL INJURY PROT $ UNINSURED MOTORIST $ AUTO PHYSICAL DAMAGE DEDUCTIBLE COLLISION: OTHER THAN COL: ALL VEHICLES Ll SCHEDULED VEHICLES I ACTUAL CASH VALUE ! STATED AMOUNT.$ OTHER GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY UMBRELLA FORM OTHER THAN UMBRELLA FORM RETRO DATE FOR CLAIMS MADE: EACH OCCURRENCE $ AGGREGATE $ SELF-INSURED RETENTION $ WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY WC STATUTORY LIMITS E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ SPECIAL PROFESSIONAL LIABILITY - Policy Term: 6/4/05 to CONDI IONS/ 6/4/06. Liability Limit: $1, 000, 000 per claim COVERAGES (See attached Spec Conditions/Other COvS page.) FEES $ TAXES $ ESTIMATED TOTAL PREM IUM 1 $ JAME & ADDRESS MORTGAGEE LOSS PAYEE LOAN # AUTHORIZED REPRESENTATIVE /I t. — 1 1 Y! ACORD 75-S (01/98) 1 of 3 #28729 NOTE: IMPORTANT STATE INFORMATION ON ADDITIONAL INSURED DE MHL © ACORD CORPORATION 1993 land $1,000,000 aggregate; Deductible: $15,000 per claim. Retroactive date: June 4, 2003. CONDITIONS This Company binds the kind(s) of insurance stipulated on the reverse side. The Insurance is subject to the terms, conditions and limitations of the policy(ies) in current use by the Company. This binder may be cancelled by the Insured by surrender of this binder or by written notice to the Company stating when cancellation will be effective. This binder may be cancelled by the Company by notice to the Insured in accordance with the policy conditions. This binder is cancelled when replaced by a policy. If this binder is not replaced by a policy, the Company is entitled to charge a premium for the binder according to the Rules and Rates in use by the Company. Applicable in California When this form is used to provide insurance in the amount of one million dollars ($1,000,000) or more, the title of the form is changed from "Insurance Binder" to "Cover Note" Applicable in Delaware The mortgagee or Obligee of any mortgage or other instrument given for the purpose of creating a lien on real property shall accept as evidence of insurance a written binder issued by an authorized insurer or its agent if the binder includes or is accompanied by: the name and address of the borrower; the name and address of the lender as loss payee; a description of the insured real property; a provision that the binder may not be canceled within the term of the binder unless the lender and the insured borrower receive written notice of the cancel- lation at least ten (10) days prior to the cancellation; except in the case of a renewal of a policy subsequent to the closing of the loan, a paid receipt of the full amount of the applicable premium, and the amount of insurance coverage. Chapter 21 Title 25 Paragraph 2119 Applicable in Florida Except for Auto Insurance coverage, no notice of cancellation or nonrenewal of a binder is required unless the duration of the binder exceeds 60 days. For auto insurance, the insurer must give 5 days prior notice, unless the binder is replaced by a policy or another binder in the same company. Applicable in Nevada Any person who refuses to accept a binder which provides coverage of less than $1,000,000.00 when proof is required: (A) Shall be fined not more than $500.00, and (B) is liable to the party presenting the binder as proof of insurance for actual damages sustained therefrom. ACORD 75-S (01/98) 2 of 3 428729